Adm21 v Minister for Home Affairs (No 2)

[2021] FedCFamC2G 323

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ADM21 v Minister for Home Affairs (No 2) [2021] FedCFamC2G 323

File number(s):

SYG 81 of 2021

Judgment of:

JUDGE DRIVER

Date of judgment:

3 December 2021

Catchwords:

MIGRATION – COSTS – Competing costs applications – prolonged proceedings – substantive issues referred for mediation, which was unsuccessful – other issues rendered moot by reason of ministerial intervention – no costs order.

Cases cited:

ADM21 v Minister for Home Affairs [2021] FCCA 1488

FHE20 v Minister for Home Affairs (No 2) [2021] FedCFamC2G 324

Division:

Division 2 General Federal Law

Number of paragraphs:

6

Date of hearing:

3 December 2021

Solicitor for the Applicant:

Mr D Taylor, with Ms N Harendran of Sydney West Legal and Migration

Counsel for the Respondents:

Ms C Roberts

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

SYG 81 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ADM21

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	3 DECEMBER 2021

INTERLOCUTORY ORDERS:

1.There is no order as to costs.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE DRIVER:

1. I have before me competing applications for costs in this matter.  I have received, over the objections of the Minister, affidavits by the applicant’s solicitors seeking to detail work done on his behalf in the principal proceedings.  Parties have provided helpful written submissions.  I accept, from the applicant’s submissions and those of the Minister the general principles guiding the Court’s exercise of its discretion on costs.  I accept from the Minister’s submissions the information on the procedural history of the matter.

2. Immediately before dealing with this matter, I dealt with competing cost applications in the matter of FHE20 v Minister for Home Affairs (No 2) [2021] FedCFamC2G 324. In that case, I decided that there should be no order as to costs, and I indicated to the parties that my preliminary view was that the outcome in this case should be the same. Taking her cue from those observations, counsel for the Minister, while maintaining a claim for costs, recognised that it was unlikely to be successful. In contrast, the solicitor for the applicant sought to distinguish this case from FHE20 by reference to the facts bearing upon the applicant’s detention, and his desire to achieve his liberty. In my view, the costs outcome in this case should be the same as in FHE20. 

3. The only substantive judgment I have given was that delivered on 9 August 2021.[1]  The applicant failed to achieve his liberty by route of a writ of habeas corpus.  In that regard, the application was dismissed in part.  However, the door was left open by reason of my finding that the applicant no longer needed to be in Australia, and the Minister had come under an obligation to return him to a regional process centre as soon as reasonably practicable. 

   [1] ADM21 v Minister for Home Affairs [2021] FCCA 1488

4. A feature of this case is that while the applicant had made requests to be removed to Nauru, I found that those requests were not voluntary.  I had regard to medical opinion that the applicant should be encouraged to withdraw his request to return to Nauru.  There was, in my view, and remains, an element of artificiality in those requests, although I accept that he may have been advised that that was one of the only ways he could achieve release from detention.

5. In any event, the outcome in my judgment of 9 August 2021 was neutral.  The matter proceeded to mediation, and the mediation was not successful.  Subsequently, the applicant pursued an issue relating to the need for a non-refoulement assessment before any return of the applicant to Nauru.  Having regard to the facts in this case, that was certainly a live issue.  It was, however, not pursued to judgment in view of ministerial intervention.  In relation to that aspect of the matter, the outcome remains a hypothetical one, and the costs should lie where they fall. 

6. I will, therefore, make no order as to costs in relation to these proceedings.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate: 

Dated:       10 January 2022

SCHEDULE OF PARTIES

SYG 81 of 2021
Respondents
Fourth Respondent:	SECRETARY, DEPARTMENT OF HOME AFFAIRS