“Encouraging” migration litigation

Federal Court. Section 486E of the Migration Act 1958 (Cth) provides that a person must not "encourage" the commencement or continuation of migration litigation if the case "has no reasonable prospect of success". Section 486F provides that a court may make a costs order against a person who breached s 486E. Can it be said that a "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"?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Would the assertion by a lawyer that a client was well aware that court applications are not 100% successful provide a client with a "meaningful assessment as to whether the appeal had a reasonable prospect of success"?

Question 2: Can it be said that, "in the absence of advice to the contrary, a litigant may have a reasonable basis to believe that the case formulated on his or her behalf is properly founded in the law and has some prospect of success"?

Question 3: Can it be said that a "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"?

Question 4: If the answer to Question 3 is "yes", can it be said that it would nevertheless be open to the lawyer to adduce evidence to rebut that inference?

Question 5: For the purposes of determining whether a lawyer has encouraged a client to commence or continue litigation, does it "matter that the litigant wishes to commence litigation for the purposes of prolonging his or her stay in Australia and so may be desperate to advance any grounds of review or appeal, no matter how unmeritorious"?.

Question 6: In order to breach s 486E, either a person who encouraged litigation must "not give proper consideration to the prospects of success of the migration litigation" (s 486E(1)(b)(i)) or "a purpose in commencing or continuing the migration litigation [must be] unrelated to the objectives which the court process is designed to achieve" (s 486E(1)(b)(ii)). For the purposes of s 486E(1)(b)(i), is the subjective views of a legal representative determinative in the consideration of whether proper consideration has been given to the prospect of success?

Question 7: "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". Can it be said that a finding that the lawyer has not given "proper consideration" in such a case may be more problematic?

Question 8: Can it be said that, "where proceedings have been commenced and continued in contravention of s 486E of the Act, ... the contravening lawyer should not be permitted to point to the agency relationship as a basis for resisting the responsibility for paying the [other side's costs]"?

The FCA answered those questions as follows:

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