FEDERAL COURT OF AUSTRALIA BUK16 v Minister for Immigration and Border Protection [2020] FCA 558 Appeal from: BUK16 & Anor v Minister for Immigration & Anor [2018] FCCA 3279 File number: NSD 2279 of 2018 Judge: CHARLESWORTH J Date of judgment: 28 April 2020 Catchwords: MIGRATION – appeal from costs order made in migration litigation in the Federal Circuit Court of Australia – whether primary judge made a finding that the litigation had no reasonable prospects of success – whether the primary judge was required to consider whether to make an order under s 486F of the Migration Act 1958 (Cth) against the appellant's former lawyer – whether former lawyer contravened s 486E – former lawyer encouraging the commencement of the litigation, including by advising the appellants their application had a 100 per cent chance of success – grounds in proceeding below contrary to well established body of authority – whether orders under s 486F may be made in the exercise of appellate jurisdiction in connection with proceedings in Federal Circuit Court of Australia – matters relevant to the exercise of the discretion conferred by s 486F Legislation: Migration Act 1958 (Cth) ss 36, 65, 91X, 422B, 424A, 425, 486E, 486F, 486I, Pts 7, 8B Federal Court of Australia Act 1976 (Cth) ss 28, 37AG Federal Court Rules 2011 (Cth) r 4.12 Migration Regulations 1994 (Cth) Cases cited: AKD16 v Minister for Immigration and Border Protection [2016] FCCA 3026; 315 FLR 228 BRF038 v Republic of Nauru [2017] HCA 44; 349 ALR 67 BUK16 & Anor v Minister for Immigration & Anor [2018] FCCA 3279 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZMKG v Minister for Immigration and Citizenship (2009) 177 FCR 555 SZTMH v Minister for Immigration and Border Protection (2015) 230 FCR 550 VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 Date of hearing: 14 October 2019 Date of last submissions: 25 October 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 75 Counsel for the Appellants: Mr M Forgacs Solicitor for the Appellants: Wotton + Kearney Pty Limited Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS NSD 2279 of 2018 BETWEEN: BUK16 First Appellant BUL16 Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: CHARLESWORTH J DATE OF ORDER: 28 APRIL 2020 THE COURT ORDERS THAT: 1. The appeal is allowed. 2. Order 2 made by Judge Dowdy on 20 November 2018 in Federal Circuit Court of Australia proceedings SYG 1834/2016 is set aside and, in lieu of that order, there be orders in terms of [3] and [4] of these orders. 3. Pursuant to s 486F(1)(a) of the Migration Act 1958 (Cth), Christopher Levingston & Associates Pty Ltd is to pay the costs incurred by the first respondent in Federal Circuit Court of Australia proceedings SYG 1834/2016. 4. Pursuant to s 486F(1)(c)(ii) of the Migration Act 1958 (Cth), Christopher Levingston & Associates Pty Ltd is to repay to the appellants the costs and disbursements paid by them pursuant to the costs agreement forming annexure "SA1" to the affidavit of the second appellant sworn on 18 September 2019 or otherwise charged in connection with Federal Circuit Court of Australia proceedings SYG 1834/2016. 5. Pursuant to s 37AG of the Federal Court of Australia Act 1976 (Cth) and s 91X(2) of the Migration Act 1958 (Cth), the names of the appellants be suppressed as they appear in any materials filed, adduced or transcribed in these proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT CHARLESWORTH J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA): see BUK16 & Anor v Minister for Immigration & Anor [2018] FCCA 3279. 2 As presently framed, the appeal broadly raises two questions. The first is whether the primary judge erred by failing to consider whether orders for costs should be made under s 486F of the Migration Act 1958 (Cth) against the appellants' former solicitors. The second is whether this Court can and should make orders under s 486F of the Act against the former solicitors in the exercise of its appellate jurisdiction, if the conditions for making the orders are otherwise satisfied. GROUNDS OF APPEAL 3 Section 486E and s 486F of the Act are contained in Pt 8B of the Act. They provide: 486E Obligation where there is no reasonable prospect of success (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 (ii) a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve. (2) For the purposes of this section, migration litigation need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (3) This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant. … 486F Cost orders (1) If a person acts in contravention of section 486E, the court in which the migration litigation is commenced or continued may make one or more of the following orders: (a) an order that 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; (b) an order that the person repay to the litigant any costs already paid by the litigant to another party to the migration litigation, because of the commencement or continuation of the migration litigation; (c) where the person is a lawyer who has acted for the litigant in the migration litigation: (i) an order that costs incurred by the litigant in the commencement or continuation of the migration litigation, are not payable to the lawyer; (ii) an order that the lawyer repay the litigant costs already paid by the litigant to the lawyer in relation to the commencement or continuation of the migration litigation. (2) If the court, at the time of giving judgment on the substantive issues in the migration litigation, finds that the migration litigation had no reasonable prospect of success, the court must consider whether an order under this section should be made. (3) An order under this section may be made: (a) on the motion of the court; or (b) on the application of a party to the migration litigation. (4) The motion or application must be considered at the time the question of costs in the migration litigation is decided. (5) A person is not entitled to demand or recover from the litigant any part of an amount which the person is directed to pay under an order made under this section. 4 By their amended notice of appeal filed on 6 September 2019 the appellants withdrew their three original grounds of appeal and added the following two alternate grounds: 4. The Federal Circuit Court erred in failing to consider whether an order should be made pursuant to s 486F of the Migration Act 1958 (Cth) that the appellants' former solicitors, Christopher Levingston & Associates (Former Solicitors): a. pay the costs incurred by the respondents in the Federal Circuit Court proceedings (s 486F(1)(a)); b. repay to the appellants the costs already paid by them to the Former Solicitors (s 486F(1)(c)(ii)). Particulars The judgment of the Federal Circuit Court on 20 November 2018 involved a finding that the proceedings had no reasonable prospect of success. Consequently, the Court was required by s 486F(2) to consider whether an order should be made pursuant to s 486F. 5. In the alternative, the Federal Circuit Court erred in failing to: a. find that the proceedings had no reasonable prospect of success; and b. in consequence of that finding, consider whether a costs order should be made pursuant to s 486F that the Former Solicitors: i. pay the costs incurred by the respondents in the Federal Circuit Court proceedings (s 486F(1)(a)); ii. repay to the appellants the costs already paid by them to the Former Solicitors (s 486F(1)(c)(ii). 5 To the extent that the appeal is now limited to an appeal from an interlocutory judgment or order, leave is granted for its commencement. 6 The appellants' former solicitor has been afforded an opportunity to be heard in relation to the amended grounds of appeal. 7 For the reasons given below, the fourth ground of appeal is established. The appeal will be allowed on that basis. It is unnecessary to determine the fifth ground. proceedings at first instance 8 The action at first instance was an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant each of the appellants a Protection (Class XA) (subclass 866) visa under the Act. The visa application 9 Subject to exceptions that need not be considered here, s 65(1)(a) of the Act provides that, after considering a valid application for a visa, the Minister is to grant the visa if satisfied that (among other things) the criteria prescribed for the visa by the Act or the Migration Regulations 1994 (Cth) have been satisfied. If not so satisfied, the Minister is to refuse to grant the visa: s 65(1)(b) of the Act. 10 For the appellants to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that they fulfilled either the criterion in s 36(2)(a) (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion). 11 As then in force, the Refugee Criterion would be satisfied if the visa applicant was a non-citizen in Australia to whom Australia had protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who: ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 12 The Complementary Protection Criterion required that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because: ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; .... 13 The appellants are citizens of Iraq. The first appellant BUK16 is the husband of the second appellant BUL16. Their claims for protection were briefly summarised by the primary judge (in terms that are not contested) as follows: First Applicant's Claims 5. The First Applicant claimed as follows: a) He faced serious threats to his life and liberty because of the growing domination of religious militias in Iraq. b) His family were victims of the sectarian war in Iraq which they opposed. c) He encountered corruption and mismanagement at the oil company where he worked, and wanted to 'blow the whistle', but realised that those who were responsible were powerful and well protected by their political supporters. d) He received many death threats against members of his family and himself, and there is currently in Iraq an antagonism towards educated people who support a secular state. e) He was accused of being an enemy of Islamic State, and feared being killed or imprisoned in Iraq for expressing his ideas; he had experienced physical and psychological harm and he feared harm from religious militias and government officials if he returns to Iraq. Second Applicant's Claims 6. The Second Applicant claimed as follows: a) Her family had to leave Baghdad due to the 'sectarian war'. They returned to live [her town] in the south of Iraq. b) [Her town] is a conservative town controlled by Al Sadr followers. c) She is a midwife who used to work from home and was later employed at a hospital. d) As a mid-wife her life was exposed to danger from armed people who forced her to work at gunpoint. e) One morning at 2am, members of the Al Sadr 'Current' forced her to go with them. f) In Iraq woman are completely deprived of their rights and looked upon as 'inferior creatures' especially by the 'fanatics' who are the dominant political force in Iraq. g) She was forced at gun point to go and treat injured individuals who could not go to hospital. h) She was subjected to harassment and abuse by religious groups and their militias. i) The dominant religious militias and the government aim to implant religious laws which deprive woman of their basic rights. 14 In his written reasons for rejecting these claims, the Minister's delegate had regard to country information reports published by the Department of Foreign Affairs and Trade in 2013 and 2014 concerning the general security situation in Iraq and the treatment of Shias there. The Tribunal's decision 15 The delegate's decision was reviewed by the Tribunal in the exercise of powers conferred under Pt 7 of the Act, titled "Reviewable decisions: conduct of review". Importantly, s 422B of the Act provides that Div 4 of Pt 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 424A is contained in Div 4. It provides: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non disclosable information. (4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F). 16 Section 425(1) of the Act provides: (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 17 In response to an invitation given under s 425(1), the appellants each appeared before the Tribunal to give evidence and present arguments. They were represented at the hearings by a migration agent. Following the hearings, the Tribunal issued an invitation to each appellant under s 424A to comment on inconsistencies in their evidence. The appellants responded with the assistance of their representative. 18 The Tribunal made adverse credibility findings against the first appellant. It did not accept the factual basis for his claims for protection and so was not satisfied that he would be "targeted for harm personally or as a member of a group". Nor was the Tribunal satisfied that the general security situation in Iraq was such that the first appellant would be exposed to any risk of persecution for a Convention reason. In support of these conclusions, the Tribunal said: 42. The Tribunal accepts that the applicant harbours secular views towards religion. The Tribunal has found no information in any of the sources consulted to suggest that Shias holding secular views are at risk of serious or significant harm. The Tribunal does not accept that the applicant has suffered any harm in the past for holding secular views. The Tribunal has rejected the applicant's claims that he had sought to express views critical of the government and the religious militias in the past and finds that he has fabricated his claims. The Tribunal finds that if the applicant were to return to [his home province] he would not express his secular views in a manner or at a level that would attract harm by anyone, including the authorities. The Tribunal does not accept that the applicant wishes to or that he would express his opinion about political developments and current events. The Tribunal does not accept that he has suppressed his political views or that he would seek to suppress his political views because he fears harm. The Tribunal does not accept that the applicant faces a real chance of being seriously harmed for the reason of his expressed or imputed political or religious opinion. The Tribunal does not accept that the applicant faces a real risk of being significantly harmed arising from his political opinion or religious views. … 45. In his response to the Tribunal's s.424A letter, the applicant referred to UNHCR's October 2014 report on Position on Returns to Iraq. The report notes that Iraq has experienced a new surge in violence between Iraqi security forces (ISF) and Kurdish forces (Peshmerga) on the one hand and the group Islamic State of Iraq and Al-Sham (ISIS). The report states that 'parties to the conflict are committing violations of international humanitarian law and gross violations of international human rights law'. The response also refers to DFAT's travel advice in relation to Iraq, strongly advising Australians not to travel to Iraq because of the 'extremely volatile and dangerous security situation'. The applicant asked the Tribunal to take into account 'the grave situation in Iraq and daily violation of human rights towards civilians in general and those who hold different views to that of the government or of the dominant militias'. 46 The Tribunal appreciates the applicant's concerns in relation to general insecurity in Iraq. According to DFAT, since early 2013, sectarian violence has escalated in the central, northern and western provinces of Iraq. In 2014, 12,300 were killed and 23,000 were injured. However, DFAT also reported that as of January 2014, government forces retained control over Baghdad and southern Iraq, as well as parts of Salah al-Din, Diyala, Wasit, Babil, Karbala, Al-Najaf, Maisan, Al-Muthanna, Thi Qar, Al-Qadisiyah and Basra. The report states that Southern Iraq (including the provinces of Basra, Karbala, Wasit, Qadisiyah, Maisan, Dhi Qar, Muthanna and Najaf) has remained significantly more secure than central Iraq in recent years. Generalised violence occurs, but at a significantly lower level than in Baghdad. 19 The country information to which the Authority referred at [46] of its reasons is a report titled Department of Foreign Affairs and Trade 2015, Iraq country report February 2015. I will refer to it as the 2015 Report. 20 The Tribunal affirmed the delegate's decision in relation to the second appellant including on the basis that "any risk to [her] arising from the situation of general insecurity and political and sectarian violence is one faced by the population generally, and not by [her] personally". 21 In the proceedings below, as on this appeal, submissions proceeded on the basis that the Tribunal's decision in relation to the second appellant was also based (at least in part) on the 2015 Report. The alleged jurisdictional error 22 On their application for judicial review, the burden was on the appellants to show that the Tribunal's decision was affected by jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ). 23 By their originating application, the appellants alleged that the Tribunal had failed to comply with the rules of procedural fairness. The particulars of that ground of review were expressed as follows: Particulars (a) At paragraph 20 of the decision record the tribunal refers to Ministerial Direction No.56 and in particular 'country information' and the fact of the tribunal having 'had regard to the DFAT Country Report Iraq (published on 13 February 2015); subsequently the tribunal refers at paragraph 42 that 'The tribunal has found no information in any of the sources consulted to suggest that Shias holding secular views are at risk of serious or significant harm'. The failure to provide the applicant with a copy of the country information and a proper opportunity to rebut the 'findings' incorporated in that undisclosed document constitute a breach of procedural fairness. (b) At Paragraph 46 of the decision record the Tribunal has had regard to the DFAT Country Report Iraq (published on 13 February 2015); concerning; inter alia, 'general insecurity in Iraq'. The failure to provide the applicant with a copy of the country information and a proper opportunity to rebut the 'findings' incorporated in that undisclosed document constitute a breach of procedural fairness. 24 The appellants were represented by counsel at the hearing. Their counsel, Mr Arch, made submissions summarised by the primary judge as follows: 20. In his Written Submissions Mr Arch, who appeared for the Applicants at the hearing, relied in particular on the decisions of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 (Miah) and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) as supporting his argument that the Tribunal committed jurisdictional error by failing to provide to the Applicant a copy of the DFAT 2015 Report and '…with an opportunity to respond to, comment on, or rebut the material in that Report'. 21. At the hearing Mr Arch also relied on s.425(1) of the Act, which he contended stood 'separate and independent from what is said in s.424A' and further submitted that s.425(1) 'trumps' s.424A(3)(a), which latter section was relied [upon] by Mr Reilly of Counsel, who appeared for the Minister at the hearing. Reasons of the primary judge 25 The primary judge said (at [23]) that it was "clearly established" that questions concerning the nature and scope of the obligation to accord procedural fairness in connection with the terms of a statutory power must turn on the terms of the relevant legislation: Kioa v West (1985) 159 CLR 550 at 614, 633 (Brennan J). His Honour said that s 424A(3)(a) of the Act restricted the scope and nature of the procedural fairness to be afforded by the Tribunal and emphasised that "the law in this regard is well settled". His Honour cited this passage from VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 (Kenny J) at [50]: … It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information 'just about' a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within s 424A(3)(a) of the Act: see, eg, Tharairasa v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 281 per Carr J; Pannasara v Minister for Immigration and Multicultural Affairs [2001] FCA 570 per Carr, Lindgren and Katz JJ; Akpata v Minister for Immigration and Multicultural Affairs [2001] FCA 402 per O'Loughlin J; Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 430 per RD Nicholson J; Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 per Mansfield J; and W104/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 771 per Lee J. Contrast VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 at [36]-[38] and [43] per Gray J. 26 The primary judge continued (at [26]): If there was any doubt about the matter, which there is not, it would be set to rest by the following passage from the judgment of the High Court in Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319 (Plaintiff M61) per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel (as she then was) and Bell JJ at 356 - 357 [91]: [91] Thirdly, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides (s 424A(I)) that the Tribunal must give an applicant 'clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review'. But that obligation is subject to qualifications. In particular, it does not extend (s 424A(3)(a)) to information 'that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member'. Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not. 27 The primary judge went on to note that the 2015 Report was not put into evidence by either party. There was, his Honour said "no suggestion that it was in any way specifically about the Applicants for the purposes of s.424A(3)(a) of the Act" (at [28]). He continued (at [36]): The following passage from the judgment of Bennett and Foster JJ in SZNKG v Minister for Immigration and Citizenship (2009) 177 FCR 555 at 567 - 568 [49] - [50] is adversely dispositive of Mr Arch's submissions, and in particular with respect to s.425 of the Act: [49] The reasons advanced in support of this submission may be shortly stated as follows: (a) Section 422B(I) was introduced into the Act by Act No 60 of 2002. This Act received the Royal Assent on 3 July 2002 and commenced the next day. The Review Application in VEAL 225 CLR 88 was determined by the Tribunal on 14 June 2002 and was thus not subject to s 422B(1). The High Court in VEAL 225 CLR 88 was·considering a statutory scheme which did not include s 422B(1) or any provision of like effect; (b) Section 422B(1) provides that Div 4 of Pt 7 of the Act: … is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (c) The effect of that provision is that Div 4 of Pt 7 provides a comprehensive procedural code in respect of the requirements of procedural fairness that must be accorded to review applicants in the conduct of reviews under that Division to the exclusion of the common law natural justice hearing rule (see VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 at [22]-[31]; and Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [60]-[70]); (d) The principles invoked by the High Court in VEAL 225 CLR 88 are part of the common law procedural fairness principles that are encompassed within what is described in s 422B(1) as 'the natural justice hearing rule'; (e) In the present case the Tribunal's procedural fairness obligations are limited to putting information that would be the reason or part of the reason for affirming the decision under review (subject to certain exceptions, as to which see s 424A(3)) to the appellant in writing pursuant to s 424A(l), or, orally during the hearing, pursuant to s 424AA, and to affording to the appellant a fair and reasonable opportunity of ascertaining and of responding to those issues which are determinative of his application during the course of the hearing (s 425 of the Act); (f) The information and material which was the subject of the references made by the Tribunal in [19], [37] and [79] of its reasons were not the reason nor part of the reason for the Tribunal's decision to affirm the delegate's decision to refuse to grant a protection visa to the appellant; (g) In addition, and in any event, the information contained in the OSCO reports was general country information and was therefore excepted from the requirements of s 424A(l) by s 424A(3)(a) and similarly excepted from the requirements of s 424AA if that section was engaged in the present case (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572); and (h) Accordingly, none of s 424AA, s 424A or s 425 was engaged in the present case and there was no room for any residual operation of the common law natural justice hearing rule. [50] We think that these submissions are correct and we accept them. The appellant therefore fails in the principal arguments advanced by him to this Court. (original emphasis) 28 The primary judge considered four additional authorities upon which counsel for the appellants had relied: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, BRF038 v Republic of Nauru [2017] HCA 44; 349 ALR 67 and a decision of the FCCA in AKD16 v Minister for Immigration and Border Protection [2016] FCCA 3026; 315 FLR 228. 29 His Honour said that SZBEL did not support the appellants' claims. To the contrary, his Honour said (at [27]), the High Court in SZBEL had confirmed the exclusory effect of s 424A(3)(a) of the Act, although the exception had not been enlivened on the facts in that case. His Honour noted that SZBEL had been decided before the enactment of s 422B of the Act. 30 As to Miah, the primary judge said: 29. In Miah, which was relied on by Mr Arch, the High Court held that general common law obligations of natural justice were such that a delegate of the Minister under the Act, before making a decision on a Protection visa application, was bound to first advise the relevant applicant of substantial new relevant material on which he might rely when making his decision, and then to invite the applicant to comment on it. 30. However, the Commonwealth Parliament responded to Miah by enacting s.357A(1) of the Act for Part 5-reviewable decisions and s.422B(1) for Part 7-reviewable decisions. Section 422B(1) provides as follows: 422B Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. 31. The effect of s.422B(1) of the Act was stated by the Full Court of the Federal Court in Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173 (Khan) at 184 [39] per Buchanan J, and agreed in by Yates J at [87], as follows: [39] Parliament responded with the enactment of s 357A(1) (and similar provisions). Those provisions have, generally, been regarded in this Court as a clear statement of legislative intent excluding the continuing operation of common law principles of natural justice in the conduct of reviews by the MRT and the RRT (see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [60]-[70]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7]-[8]; Saeed v Minister for Immigration and Citizenship (2009) 176 FCR 53 at [24]-[32], [46]). Nevertheless, it is now clear that s 357A(1) (and similar provisions) are only effective to exclude the natural justice rule with respect to 'matters' actually dealt with in the provisions to which they refer (Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [35]-[42])… See also the decision of Flick J in SZNSI v Minister for Immigration and Citizenship [2010] FCA 223 at [13] – [14]. 32. Clearly s.424A of the Act is part of Division 4 of the Act and s.422B(1) means that any general law obligation which there otherwise might have been to give a copy of the DFAT 2015 Report to the Applicants and invite them to comment and respond to it was excluded: see Khan at [40] per Buchanan J and [87] per Yates J. 31 The primary judge said that BRF038 and AKD16 were "clearly distinguishable" because s 424A had no application in either case. THE CONDUCT OF THIS APPEAL 32 The notice of appeal in its original form was prepared by the appellants as self-represented litigants. The grounds of appeal included the following statement: 1. We were represented in the Federal Circuit Court by Christopher Livingstone & Associates who previously assured us about good prospect of winning and we are now at a shock to know that His Honour dismissed the application on 20 November 2018. We have no money to pay the lawyers to take this matter to the Federal Court so we are self represented and we paid the lawyer $25,000 which was mainly borrowed money. 33 The appellants made further complaints in the course of the hearing about the conduct of their former solicitors. At that time they remained self-represented. They did not articulate their complaints in a manner that suggested appealable error on the part of the primary judge. However, it was plain that they felt surprised that they had not succeeded in the proceedings below and wronged that they had paid their former solicitor so much for an adverse result at first instance leaving them without the financial resources to obtain advice and representation in relation to this appeal. 34 The Court adjourned the appeal part heard and referred the appellants for legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth). 35 That referral was accepted by Mr Forgacs of counsel. Mr Forgacs was assisted by the law firm Wotton + Kearney Pty Limited. 36 Having secured legal representation, the appellants were granted leave to amend the notice of appeal in terms set out earlier in these reasons. The amendments were not opposed by the Minister. APPEALABLE ERROR 37 The application for judicial review meets the description of "migration litigation" for the purposes of Pt 8B of the Act. Section 486I(1) of the Act (also contained in Pt 8B) provides that a lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. A court must refuse to accept a document commencing migration litigation if it is a document that must be certified but has not been: Act, s 486I(2). 38 The appellants' application for judicial review states that it was prepared and filed on the appellants' behalf by their solicitor, "Christopher Levingston & Associates". Mr Christopher Levingston certified the originating application in accordance with s 486I. On the material before me I am satisfied that Mr Levingston is the principal solicitor of the legal practice incorporated as Christopher Levingston & Associates Pty Ltd (CLA). The appellants entered into a costs agreement with CLA. The terms of the agreement identify Mr Levingston as the person the appellants should contact to discuss their costs. 39 Mr Levingston has been provided with the parties' submissions, transcripts and other materials. Neither CLA nor Mr Levingston applied to be joined as a party to the appeal, nor did they seek to file evidence. By letter dated 15 August 2019 to Wotton + Kearney, a representative of CLA advised "we oppose the grounds of the proposed amended notice of appeal" for reasons that are then set out. Among other things, the letter asserts that the then proposed amended grounds of appeal were "futile". The letter concluded: In addition, the Appellants appear to be utilising the Court system to ventilate their complaints regarding the services provided to them by our firm. The Office of the Legal Services Commissioner is the appropriate recourse for such matters. If the Appellants elect to pursue their appeal on the basis of the grounds outlined in the proposed amended notice of appeal, we request that you bring this letter to the Court's attention. 40 Notwithstanding that CLA has not sought to be joined as a party, its correspondence has been read to the extent that it contains material in the nature of submissions concerning the proper interpretation of the Act and the reasons of the primary judge, and to the extent that it advances reasons why this Court should not or cannot grant the orders now sought. The circumstance that CLA has not sought to be joined as a party or otherwise to adduce evidence has the consequence that the evidence upon which the appellants rely is unchallenged. 41 The effect of s 486F(2) of the Act is that where a court, at the time of giving judgment on the substantive issues in migration litigation finds that the litigation had no reasonable prospect of success, the Court must consider whether an order under s 486F should be made. 42 The letter from the former solicitor asserts that the primary judge made no such finding. 43 I reject that assertion. There is nothing in s 486F(2) of the Act to suggest that the finding be expressed in any particular form of words. The question of whether the finding has been made gives rise to questions of substance, not form. In the present case, the primary judge stated (with respect, correctly) that the principles to be applied in discerning the nature and scope of the rules of procedural farness that are to apply in connection with the exercise of a statutory power were "clearly established". Applying that uncontroversial principle, his Honour said (again, correctly) that s 424A(3)(a) of the Act "restricted the scope and nature of" the procedural fairness to be afforded by the Tribunal, and that the "law in this regard is well settled". His Honour referred to VHAJ in which Kenny J confirmed that it had been "repeatedly held" that information of the kind contained in country information reports falls within s 424A(3)(a) of the Act. 44 His Honour went on to say that "if there was any doubt about the matter, which there is not, it would be set to rest by" the judgment of the High Court Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 (my emphasis). His Honour further said that the judgment in SZMKG v Minister for Immigration and Citizenship (2009) 177 FCR 555 was "adversely dispositive" of the submissions advanced by the appellants' counsel. The manner in which his Honour correctly dealt with the authorities upon which the appellants' former counsel relied makes it clear that they were not capable of assisting the appellants at all. 45 As a general proposition, it may be accepted that whether information contained in a country information report is information to which s 424A(3)(a) applies is to be decided on a case by case basis. The passage from the judgment of Kenny J in VHAJ referred to by the primary judge is followed by an analysis of the authorities. It is helpful to extract her Honour's analysis in full: 53 Baig should be contrasted with VAAC v Minister for Immigration and Multicultural Affairs [2002] FCA 573 (the facts of which are closer to the present case than Baig). In VAAC, Marshall J considered a number of issues, including an alleged contravention of s 424A. Although his Honour's decision was ultimately reversed on appeal (on a ground that had not been argued at first instance) the Full Court endorsed his approach to s 424A(3)(a): see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [20]. A comparison of the decisions in VAAC and Baig illustrates the difference between information that falls within s 424A(3) and information that does not. 54 At first instance, Marshall J held that the Tribunal had not contravened s 424A(1) by failing 'to give the applicant particulars of the information it had concerning the ability of the Afghan government in exile to issue passports to Afghan nationals in Australia through its consular services located in Canberra': see VAAC v Minister for Immigration and Multicultural Affairs [2002] FCA 573 at [12] and [28]. His Honour held, at [26]-[27], that the information in question was not specifically about the applicant or another person, and '[was] just about a class of persons of which the applicant or another person [was] a member'. On appeal, the Full Court (North, Merkel and Weinberg JJ) agreed: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168. Their Honours said (at [20]): The information was just about a class of persons, namely, Afghan nationals who seek the issue of a passport. In relation to that class, the information was that there was a consulate in existence in Canberra which could issue such passports. 55 The information in VAAC was relevant merely because it tended to show that there was a class of persons, which included the applicant, who could obtain an Afghan passport from the Afghan consulate in Canberra. This information was significant because there was other material before the Tribunal showing that, if he had a passport, the applicant could enter and reside in India, where he would not have a well-founded fear of persecution on Convention grounds. There is no relevant difference, it seems to me, between the information at issue in VAAC and the Information in this case. In a sense, the Information in this case is about Italian law, but it is relevant only because it is also about holders of current Italian permits. As already noted, information does not cease to be information 'just about' a class of persons merely because it can be characterised in more than one way. For the purpose of s 424A(3)(a), information is just about a class of persons (even though for another purpose it could bear some other characterisation) if it is relevant to the Tribunal's decision only because it is about this class of persons. The Information in this case was relevant only because it provided the basis for the Tribunal's conclusion that the appellants could enter Italy and reside there. (The Tribunal's decision assumed that if the appellant husband could reside in Italy, then so too could the appellant wife and appellant children.) Since there was evidence before the Tribunal that the appellant husband had a current permit, then it was open to the Tribunal to conclude that he was a member of the class of current permit holders who, by virtue of Italian law, could enter and reside in Italy. The Information was not relevant to the Tribunal's decision-making on any other basis. The Information was, therefore, 'just about a class of persons of which the applicant … is a member'. 56 It follows that the Information satisfies both elements of s 424A(3)(a) and falls within the exception in that paragraph. Accordingly, the Tribunal had no obligation under s 424A(1) to invite comment upon it. The appellant did not contend or suggest that, in the circumstances of the case, there might otherwise have been any breach on the Tribunal's part of the general rules of procedural fairness. 46 The letter from CLA invokes this passage in support of a contention that the ground of review before the primary judge raised a nuanced point that was fact sensitive and that could not be said to have no reasonable prospects of success. That part of the letter ignores the limited and unsophisticated nature of the arguments in fact advanced below. The appellants' representatives did not seek to argue that the information contained in the 2015 Report was, by reason of its content or its nature, information to which the exception in s 424A(3)(a) did not apply on its terms. Indeed, the 2015 Report was not adduced in evidence at all, whether for that or any other purpose. No occasion arose for the primary judge to consider its contents against the terms of s 424A(3)(a). The use to which the Tribunal put the 2015 Report suggests that it contained information that was relevant only because it concerned whether Shias with secular views were at more risk of harm. There was no attempt to show that the Tribunal made adverse findings by reference to it that were not open to the Tribunal to make. 47 The argument advanced on the appellants' behalf was that s 425 of the Act somehow prevailed over s 424A with the result that the common law rules of procedural fairness required the Tribunal to provide the 2015 Report to the appellants and afford them an opportunity to be heard in respect of all of its contents. The primary judge properly rejected that argument in terms that recognised no merit in it whatsoever. The primary judge said that there was "no doubt" that the construction advanced on the appellants' behalf was wrong. That portion of his Honour's reasons, read in the context of the Reasons as a whole, constitutes a finding that the litigation had no reasonable prospects of success. The consequence of that finding was that an obligation arose to consider whether an order under s 486F of the Act should be made. 48 It follows that the error alleged in the fourth ground of appeal is established. RELIEF 49 The orders sought on the amended notice of appeal are: 4. The appeal be allowed. 5. Order 2 made by Judge Dowdy on 20 November 2018 (Order 2) be set aside. 6. In lieu of Order 2, an order that the Former Solicitors: a. pay the costs incurred by the respondents in the Federal Circuit Court proceedings (s 486F(1)(a)); b. repay to the appellants the costs already paid by them to the Former Solicitors (s 486F(1)(c)(ii)). 7. In the alternative, in lieu of Order 2, an order that the matter be remitted to the Federal Circuit Court to consider whether an order should be made pursuant to s 486F that the Former Solicitors: a. pay the costs incurred by the respondents in the Federal Circuit Court proceedings (s 486F(1)(a)); b. repay to the appellants the costs already paid by them to the Former Solicitors (s 486F(1)(c)(ii)). 50 This Court may, in the exercise of its appellant jurisdiction, set aside an order appealed from and make such orders as it thinks fit: Federal Court of Australia Act 1976 (Cth): s 28(1)(a)(b); Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [45] (Gaudron J). Neither party submitted that this Court could not undertake the consideration required by s 486F(2) of the Act and make orders pursuant to that section in the exercise of its dispositive powers on this appeal. Nor was any such contention made in CLA's letter. It would not be expedient to remit to the primary judge the question of whether orders for costs should be made against CLA. It is clearly preferable that this Court determine whether the orders sought in [6] of the amended notice of appeal should be made. 51 I have already concluded that the primary judge made a finding that the proceedings at first instance enjoyed no reasonable prospects of success. To the extent that it is necessary, this Court makes the same assessment. 52 It remains to consider whether the power to make the orders sought by the appellants is enlivened and, if so, whether the orders should be made in the exercise of the Court's discretion. Principles 53 In SZTMH v Minister for Immigration and Border Protection (2015) 230 FCR 550 Rangiah J considered at some length the purpose and proper construction of s 486F of the Act. His Honour's helpful statement of the principles is extracted here in full: 54 The policy rationale behind Pt 8B of the Act is not difficult to discern. The legislature was concerned to discourage lawyers and other persons from encouraging the commencement or continuation of migration litigation that is without merit. In SZFDZ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 482 (SZFDZ), Moore J said of Pt 8B: 26 [Section 486F] is part of a recently enacted costs regime embodied in Pt 8B of the Act. That regime was introduced against a background where in both this Court and the Federal Magistrates Court, there has been an unrelenting stream of applications challenging decisions made under the Act. Those applications are often brought by litigants in person who, in many cases, have been given assistance by others. History reveals that many of those applications are unmeritorious and are doomed to fail. That is not to say, of course, that there are not also applications which reveal decision-making either arguably or actually infected by reviewable error. There are. Mostly, the applications relate to decisions made under the Act concerning applications for protection visas. Legal error resulting in the refusal of a protection visa, in circumstances where such a visa should or might be granted, could have profound consequences for the individual applicant. 27 However, Parliament appears to have taken the approach that, in relation to proceedings concerning decisions under the Act, proper consideration must be given by people assisting litigants about the prospects of success before proceedings are commenced. If that does not happen, the person providing assistance is at risk of being ordered to pay the costs of other parties to the litigation. 55 While Parliament intended to discourage persons from encouraging others to make and continue unmeritorious applications in migration cases, it is evident from Pt 8B that Parliament was also concerned to balance competing aspects of the public interest. 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': Ridehalgh v Horsefield [1994] Ch 205 at 226. If costs are too readily awarded against lawyers and other persons, even more litigants (many of whom have little or no English and no familiarity with our legal system) will have to represent themselves in migration litigation, increasing the burden on the courts and potentially decreasing the quality of justice that is delivered. Parliament balanced these competing considerations by building some protections for lawyers and other persons into Pt 8B. 56 Section 486E(1) is not contravened merely because the migration litigation has no reasonable prospects of success. For the provision to be contravened it must also appear that the person has not given proper consideration to the prospects of success, or that a purpose in commencing or continuing the migration litigation is unrelated to the objectives the court process is designed to achieve. These requirements reflect the circumstances in which costs may be awarded against a lawyer under the general powers of courts to award costs against a non-party, including s 43(1) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act). In Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155, the Full Court said at [44]: There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success. 57 As the Minister alleges that s 486E(1) was contravened, there is onus on the Minister to prove the contravention. Section 140(1) of the Evidence Act 1995 (Cth) provides that in a civil proceeding the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Section 140(2) provides that the matters the Court must take into account in deciding whether it is so satisfied include the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged. It has been held that Dixon J's discussion of the operation of the civil standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 expresses the considerations which s 140(2) of the Evidence Act requires a court to take into account: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [31]. 58 An allegation that a lawyer or other person has contravened s 486E is a serious one and an order under s 486F that a lawyer or other person pay costs has serious consequences. Not only is there the financial cost, but the professional reputation of the lawyer will be damaged. These circumstances call for caution on the part of the Court when deciding whether there has been a breach of s 486E. Such a view is consistent with Levick, where the Full Court endorsed the need for caution in making orders against solicitors: see also Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 at 333 and 345. 59 Section 486E is not contravened unless a person 'encourages' another person to commence or continue migration litigation in a court. It is unclear whether a person encourages another merely by giving advice or providing representation, or whether something more must be demonstrated: cf SZFDZ at [21]. As this issue was not the subject of argument before me, I prefer not to determine it. It is not necessary for me to do so in order to dispose of the application. 54 I respectfully agree with his Honour's analysis, save that it is not necessary in this case to express any view as to whether the word "encourage" requires something more from a lawyer than the preparation of grounds and the provision of legal advice and assistance in connection with the commencement and continuation of migration litigation. Whether something less than active express encouragement is sufficient may be left to a case in which the result turns on the question. As explained below, I am satisfied that there was conduct amounting to express encouragement in this case. 55 To Rangiah J's helpful analysis I would add that s 486F has (at least) two protective purposes. The first is directed toward the interests of vulnerable persons who rely upon others to provide legal advice and assistance in relation to the preparation and prosecution of migration litigation. The provision aims to ensure that persons on whose behalf migration litigation is commenced receive accurate advice as to their prospects of success so as to enable the prospective litigant to make his or her own informed assessment as to whether the litigation should be commenced at all. Such persons are vulnerable not only because they are exposed to the spectre of adverse costs orders but because they are wholly reliant on the expertise of their advisers to whom (in most cases) they are contractually obliged to pay considerable fees. 56 The second protective purpose relates to the public interest in the proper administration of justice in migration proceedings more generally. In my view, the provisions in Pt 8B of the Act are intended in part to avoid an increase in caseloads and delays associated with the commencement and continuation of litigation having no reasonable prospects of success, and so facilitate the timely final resolution of questions concerning the immigration status of visa applicants under the Act. 57 These two objectives are met by conferring a discretion to impose financial consequences upon those who encourage the commencement of litigation objectively having no reasonable prospects of success in circumstances where subjectively there has been no proper consideration given to the prospects. Contravention in the present case 58 As Rangiah J said, orders under s 486F of the Act may only be made against a person if the person has acted in contravention of s 486E. The elements of a contravention are as follows: (1) a person has encouraged another person to commence or continue migration litigation in a court; and (2) the migration litigation has no reasonable prospects of success; and (3) either: (a) the person does not give proper consideration to the prospects of success of the migration litigation; or (b) a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve. 59 The second element is satisfied for the reasons I have already given. Encouragement 60 The appellants relied on an affidavit of the second appellant sworn on 18 September 2019 relating to their dealings with CLA. I make the following findings based on that evidence: (1) Neither of the appellants speaks English. (2) Following the Tribunal's decision, the appellants' migration agent suggested that they consult a lawyer. The agent recommended that the appellants seek legal assistance from Mr Christopher Levingston of CLA. (3) The appellants attended a meeting at the offices of CLA on 12 July 2016 in the company of their agent. Their agent interpreted what was said at the meeting for them. (4) The agent informed the appellants that Mr Levingston was not available but that one Mr Edmund was authorised to speak on Mr Levingston's behalf. (5) The second appellant asked Mr Edmund if they had good chances of winning their case. (6) Mr Edmund said words to the effect "You will win the case, 100%. Otherwise we would not take your case or accept your money". (7) Mr Edmund told the appellants that the costs of running their case would be $25,000. (8) The appellants entered into a costs agreement with CLA on the same day. They paid $5,000 in advance at the meeting and the balance by later instalments. The appellants made the payments from money borrowed from others. (9) Neither Mr Edmund nor Mr Levingston explained the arguments that might be advanced on the application for judicial review. They did not provide the appellants with documents filed on the appellants' behalf in the FCCA. The appellants received no correspondence informing them of the status of their application. (10) The appellants received a telephone call from their migration agent on the day before the hearing before the FCCA informing them that the hearing would proceed on the following day. The agent said that it was not necessary for them to attend. (11) The hearing before the FCCA took one hour. (12) The appellants commenced their application for judicial review in the FCCA because they had been assured that the application for judicial review would be successful. 61 I am satisfied that the words said at the meeting between the appellants and Mr Edmund were words said for and on behalf of CLA. It is unnecessary to determine whether Mr Edmund is a legal practitioner. I am satisfied that CLA's principal solicitor, Mr Levingston, undertook responsibility for the discharge of CLA's obligations, including its obligation to comply with the provisions of the Act. 62 I find that the appellants were encouraged to commence their application for judicial review in the FCCA by Mr Edmund's express statement that there was a 100 per cent chance that they would succeed, together with the statement that CLA would not otherwise take the appellants' money, together with the absence of any legal advice whatsoever to the appellants as to the issues that might arise in the litigation and the significant risks inherent in it. No proper consideration 63 Notwithstanding Mr Levingston's certification of the originating application, I am also satisfied that no person on CLA's behalf gave proper consideration to the question of whether the litigation had reasonable prospects of success. 64 What will amount to "proper" consideration will depend upon all of the circumstances of the case. It is relevant that the person against whom the orders are sought is an incorporated law firm professing to have expertise in the field of migration law. 65 It is relevant that the written submissions filed on the appellants' behalf contain no reference at all to s 422B of the Act, nor any reference to s 424A. There is no reference to the authorities concerning the legal effect of those provisions and no attempt to explain how those authorities might be distinguished or otherwise overcome in the appellants' case. I find that at the time that the originating application was commenced, no person on CLA's behalf had given proper consideration to the statutory provisions that governed the question of what the rules of procedural fairness required in the appellants' case. No proper consideration of the merits of the litigation could be undertaken by any qualified lawyer, acting competently, without prior regard to the statutory provisions governing the exercise of the Tribunal's powers. The provisions were not new. The oral submission that s 424A was trumped by s 425 was unsound in the sense that it was not founded upon any recognisable legal principle. A lawyer giving proper consideration to the appellants' prospects of success would have recognised the insurmountable difficulty the appellants would face in light of s 422B and s 424A of the Act and advised the appellants of the risks inherent in the unmeritorious argument. 66 In the absence of evidence to the contrary it is reasonable to infer that the conduct of preparing the appellants' case, advising them in relation to it and advancing written and oral submissions in an attempt to support it was conduct attributable to CLA. I would draw that conclusion even if the solicitor who appeared in the role of counsel was not an employee of CLA. 67 I conclude that no proper consideration was given to whether the appellants had reasonable prospects of succeeding on their application, whether before or after substantial amounts in legal fees were charged and received. Accordingly, I am satisfied that CLA contravened s 486F of the Act. 68 It follows that the preconditions for making an order under s 486F of the Act are satisfied. Discretionary factors 69 The discretion conferred by s 486F of the Act should not be exercised in a way that would inhibit the development of novel arguments. That is particularly so where the novel argument concerns the proper construction of the Act and the legality of decisions made under it, and where the novel argument is underpinned by logic and legal principle. Section 486F is not directed at circumstances where the litigant is fully informed of the risks associated with the prosecution of a novel argument and, having been properly advised, assumes the risk of the adverse costs consequences that might follow should the argument be rejected. The present case lacks those features. The argument advanced on the appellants' behalf had no reasonable prospects of success because it was contrary to a settled body of authority and because it was not suggested that the authorities had been wrongly decided and because there was no principled basis for distinguishing them. The appellants were given no advice as to the risks inherent in the argument. To the contrary, they were told there was no risk at all. The appellants cannot be said to have knowingly assumed the risk of the adverse costs outcome that naturally followed from the dismissal of their application for judicial review. As non-English speaking litigants with no legal training, they were in no position to identify or assess the risk themselves. 70 The letter from CLA asserts that any complaints the appellants might have about the legal services provided to them are matters for the Law Society of New South Wales to determine. It is true that the appellants have made complaints that, if established in a different context, may justify disciplinary action under legislation regulating the conduct of legal practitioners. But that of itself does not provide a basis for refusing the orders sought. That is particularly so in circumstances where CLA has not produced any evidence to suggest that it has gained any insight into the purposes for which s 486F of the Act was enacted. It has not sought to be joined as a party to make any submission to that effect. Its correspondence appears to assert that the appellants' complaints are raised in this proceeding for an improper purpose. As I have said, its letter concerning the merits of the appellants' case did not reflect the case that was in fact run. To date, CLA has refused to refund the appellants' fees. I am satisfied that the orders sought are consistent with the protective purposes for which Pt 8B of the Act was enacted. 71 The power to make an order under s 486F does not depend upon a finding that the appellants' former solicitors have breached their contractual or fiduciary duties to their clients. It is not necessary to make any such finding. 72 In the circumstances I have described I can see no reason why CLA should retain the benefit of the fees it has received pursuant to the costs agreement. The fees were charged for legal services provided in a manner that contravened the Act. They should be promptly repaid. 73 It is also appropriate to order that CLA be liable to pay the Minister's costs in FCCA proceedings. In that way, the financial consequences of the unsuccessful litigation will be borne by the entity whose conduct caused the litigation to be commenced and continued. 74 The appellants should be required to file and serve an affidavit deposing to whether their fees have been repaid so that the Court may supervise CLA's compliance. 75 I will hear from the parties as to the costs of this appeal. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate: Dated: 28 April 2020