Arj22 v Secretary, Department of Home Affairs
[2022] FedCFamC2G 344
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ARJ22 v Secretary, Department of Home Affairs [2022] FedCFamC2G 344
File number(s): SYG 293 of 2022
MLG 321 of 2022
MLG 322 of 2022Judgment of: JUDGE DRIVER Date of judgment: 20 May 2022 Catchwords: MIGRATION – costs – medevac detainees – proceedings dismissed following Ministerial intervention and the grant of visas – order that there be no order as to costs Legislation: Migration Act 1958 (Cth) ss 195A, 197AB, 198, 198AD, 417 Cases cited: FCZ20 v Minister for Home Affairs [2022] FedCFamC2G 15
FCZ20 v Minister for Home Affairs (No 2) [2022] FedCFamC2G 148
FKU20 v Minister for Home Affairs [2022] FedCFamC2G 343
Grant v Secretary, Department of Home Affairs [2022] FCA 261
Kheir v Secretary to the Department of Justice and Regulation [2019] VSC 76
Lafferty v Waterton [2016] WASCA 183
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR
Plaintiff M40/2015 v Minister for Immigration and Border Protection [2015] HCATrans 97
Re Bonnie View Petroleum Pty Ltd (In Liq) [2018] VSC 489
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Shellharbour City Council v Minister for Local Government [2017] NSWCA 256
SPKB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 532
WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625
Woollahra Municipal Council v Minister for Local Government [2017] HCATrans 244
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of last submissions: 6 May 2022 Date of hearings: Decided without oral hearing Place: Sydney Counsel for the Applicant in ARJ21:
Counsel for the Applicant in AIB21:
Counsel for the Applicant in ARJ21:
Dr Christopher Ward SC, with Mr R Reynolds
Mr JR Murphy
Mr LT Livingstone SC, with Ms K A Morris
Solicitors for the Applicants: Human Rights for All Counsel for the Respondents: Mr N Swan Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 293 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARJ22
Applicant
AND: SECRETARY, DEPARTMENT OF HOME AFFAIRS
First Respondent
MINISTER FOR HOME AFFAIRS
Second Respondent
MLG 321 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIB22
Applicant
AND: SECRETARY, DEPARTMENT OF HOME AFFAIRS
First Respondent
MINISTER FOR HOME AFFAIRS
Second Respondent
MLG 322 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARK22
Applicant
AND: SECRETARY, DEPARTMENT OF HOME AFFAIRS
First Respondent
MINISTER FOR HOME AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.There is no order as to costs in the proceedings.
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).
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
This judgment concerns an outstanding issue of costs in three proceedings instituted on 10 February 2022,[1] 11 February 2022[2] and 21 February 2022.[3] In each case the applicants had sought, by way of an amended application filed on or about 17 March 2022, interlocutory relief in the form of an expedited hearing, an injunction preventing their removal to either their country of origin, Papua New Guinea or Nauru, and alternative detention in the company of and restrained by one or more officers as defined under the Migration Act 1958 (Cth) (Migration Act) rather than “held detention” at the Park Hotel in Melbourne. The applicants also sought a mediation order.
[1] ARK22 v Secretary, Department of Home Affairs & Anor (MLG 322 of 2022)
[2] AIB22 v Secretary, Department of Home Affairs & Anor (MLG 321 of 2022)
[3] ARJ22 v Secretary, Department of Home Affairs & Anor (SYG 293 of 2022)
The applicants sought final relief which varied to some extent but which generally sought a declaration to the effect that, in the events that have occurred:
(a)the applicant has made a valid request, pursuant to s 198(1) of the Migration Act, to be removed from Australia; and/or
(b)the applicant has made a valid request, pursuant to s 198(1) of the Migration Act, to be removed to:
(i)United States of America; and/or
(ii)New Zealand; and/or
(iii)the Republic of Bulgaria; and/or
(iv)Germany; and/or
(v)Hungary; and/or
(vi)Vanuatu; and/or
(vii)Antigua and Barbuda; and/or
(viii)St Kitts and Nevis; and/or
(ix)Dominica; and/or
(x)Grenada; and/or
(xi)Turkey; and/or
(xii)Saint Lucia; and/or
(xiii)Hellenic Republic (Greece); and/or
(xiv)Spain.
Secondly, the applicants sought a declaration to the effect that, in the events that have occurred, the respondents have failed to comply with their duty under s 198(1) of the Migration Act to effect the removal of the applicants from Australia as soon as reasonably practicable, and relief to require the respondents or either of them, to remove the applicants from Australia as soon as reasonably practicable pursuant to s 198. Alternatively, they alleged a breach of duty pursuant to s 198AD of the Migration Act, to remove them, other than to the applicants’ countries of origin, Papua New Guinea or Nauru, and sought an injunction to restrain the respondents from removing or taking, or causing to be removed or taken, the applicants from Australia to the applicants’ countries of origin, Papua New Guinea or Nauru.
The applicants also sought alternative detention arrangements and costs.
The amended applications were opposed by the respondent Minister and Secretary.
In essence, each applicant sought release from “held detention” and removal from Australia to a country of refuge.
The proceedings were not heard because on or about 28 March 2022 the Minister for Home Affairs granted visas to each of the applicants and they were released from immigration detention. As a consequence, the substantive issues in the proceedings were resolved. The parties discussed the issue of costs but were unable to agree. This judgment deals with that outstanding issue of costs.
APPLICANTS’ CONTENTIONS
The applicants contend that the respondents effectively capitulated by granting them visas. They note that the visas were only granted after they had incurred expenses in the proceedings and they assert that they achieved the substantive outcomes sought. They further assert that they were almost certain to have succeeded in the proceedings.
RESPONDENTS’ CONTENTIONS
The respondents submit that there should be no order as to costs. In support of that contention the respondents relevantly submit as follows.
On 28 March 2022, the Minister for Home Affairs granted the applicants a visa in the exercise of a non-compellable personal power in s 195A of the Migration Act. The result is that each applicant became a “lawful non-citizen”, rather than an “unlawful non-citizen”, and hence s 198(1) of the Migration Act (which the applicants sought orders requiring to be performed) is not capable of applying to them. The applicants’ claim for relief has become moot or futile by reason of the grant of the visa.
In Plaintiff M40/2015 v Minister for Immigration and Border Protection,[4] the plaintiffs sought orders quashing a personal decision made by the Minister to revoke residence determinations (that determination having permitted “community detention”) made under s 197AB of the Migration Act. If the application had succeeded, the residence determination would have been operative, and the plaintiffs would have resumed living in the community, rather than “held” detention. Before the trial, the Minister granted visas under s 195A. Hayne J rejected an application for costs, applying Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin,[5] noting that the respondent had not been unreasonable in defending the proceedings, and also observing (respondents’ emphasis retained):
In considering that question [as to costs] it is important to notice that the grant of visas under section 195A to each plaintiff has the consequence that they are no longer classified under the Act as “unlawful non-citizens”. Each now holding a visa, each is a lawful non-citizen in Australia. Because each has that status, neither may be detained in immigration detention. The claims which each plaintiff made in this Court were not directed to challenging their status as unlawful non-citizens. The claims which each plaintiff made were confined to challenging the validity of the revocation of a residence determination.
The plaintiffs are right to say that the grant of visas under section 195A of the Act overtakes – it might be said overwhelms – the dispute which had been the subject of the proceedings in this Court. In that sense the plaintiffs are right to say that they have achieved all that they sought to achieve in the proceedings that they instituted. It is, however, important to recognise that not only have they achieved what they sought to achieve by the proceedings they instituted, the Minister’s grant to them of visas gives them a status which they did not have.
[4] [2015] HCATrans 97
[5] (1997) 186 CLR 622
As in Plaintiff M40/2015, the grant of a visa by the Minister now gives each applicant a status (a lawful non-citizen) he did not have, which “overtakes” or “overwhelms” the relief previously sought in this proceeding. That relief has, as noted above, become moot or futile. Applying Plaintiff M40/2015, the appropriate order is that costs lie where they fall.
No costs where dispute is “overtaken” by visa grant and the Secretary acted reasonably
In Lai Qin, an application for judicial review of the Tribunal’s decision (to affirm a decision not to grant her a protection visa) was rendered moot by the Minister exercising a personal discretion to grant her a protection visa under s 417 of the Migration Act. McHugh J explained at 624-625:
In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties... To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation.
...
Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried....
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.
His Honour made no order as to the costs of the proceeding. The applicant had acted reasonably in commencing proceedings and it would have been reasonable for the Minister to have defended the Tribunal’s decision (at 626-627). In Woollahra Municipal Council v Minister for Local Government,[6] Gageler J cited the “guiding principle” in Lai Qin with approval, and re-iterated the “principle is that if it appears that both parties have acted reasonably until the litigation was settled, or its further prosecution became futile, the proper exercise of discretion as to costs will ordinarily mean that the Court will make no order as to the costs of the proceedings”.[7]
[6] [2017] HCATrans 244
[7] see also eg. Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681 at [30], Lafferty v Waterton [2016] WASCA 183 at [17]-[18]
There was nothing unreasonable in the respondents resisting the applicants’ application prior to the grant of the visa under s 195A.
The applicants alleged they made a request to be removed under s 198(1) of the Migration Act.[8] On or about 20 January 2022, the Australian Government Solicitor sent correspondence to the applicants’ solicitor in which, among other things, it was stated that the correspondence did not constitute a written request for the purposes of s 198(1), because “the letter conditions the request to be removed by excluding the possibility of removal to various countries”.[9] In WAIS v Minister for Immigration and Multicultural and Indigenous Affairs,[10] French J explained that an unlawful non-citizen cannot condition or limit a request for removal under s 198(1) by excluding removal to particular countries. His Honour stated that “I would go so far as to say the written request for removal contemplated by s 198(1) which is so conditioned is not a request of the kind contemplated by that section”, and that a request which is “subject to conditions including conditions which exclude removal to specified countries” was such a request. A request which is so conditioned does not “attract the duty to remove him which is created by that section”.[11] There was, accordingly, a serious issue to be tried by the Court in the present proceeding as to whether the applicants had made a request that actually engaged s 198(1) of the Migration Act at all. (If the Court determined that the applicants’ request was not one which engaged s 198(1), then the duty to remove in s 198(1), which the applicants sought an order to enforce, would not have arisen).
[8] see applicants’ submissions dated 28 March 2022 at [4], [7(a)]
[9] see Annexure AMB2-03 to the affidavit of Alison Mary Battisson affirmed on 9 February 2022 at pages 51-53
[10] WAIS [2002] FCA 1625 at [60]-[61]
[11] These passages were cited with approval by the Full Federal Court in SPKB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 532 at [17]
The applicants sought interlocutory and final relief to the effect that their immigration detention occur at a particular residential address, pending performance of the duty to remove them. That relief was sought in reliance upon AZC20 v Minister for Home Affairs per Rangiah J.[12] However, the Minister had never conceded the availability of any power to make such an order and had, prior to this proceeding being commenced, appealed from Rangiah J’s orders. On 5 April 2022 (before the present proceeding’s hearing date), the Full Federal Court allowed the Minister’s appeal and found that the Court did not have power to make such orders.[13]
[12] [2021] FCA 1234; see applicants’ submissions dated 28 March 2022 at [30], [33], footnotes 26 and 28
[13] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52, especially at [100]-[101]
In Lai Qin, McHugh J emphasised that where there has been no hearing on the merits, the Court is not to try a “hypothetical” action in order to determine costs. In making the above points, the respondents are not asking the Court to do so. Rather, they simply seek to illustrate that the respondents had good arguments, supported by Full Federal Court authority, available to them to resist the relief sought by the applicants in these proceedings. It was not inappropriate or unreasonable, let alone untenable, for the respondents to defend the proceeding. Also, on 21 March 2022, the respondents’ solicitors put the applicants’ solicitor on notice that the applicants had been referred to the Minister for the potential exercise of power in s 195A or s 197AB. Giving advanced notice of that prospect was a reasonable and sensible course of action to take.
Contrary to the applicants’ submissions on costs at [8], this is not a case where the Court “can feel confident” that the applicant was “almost certain” to have won. The respondents submit that there were serious issues for the Court to determine and, if they were determined in the respondents’ favour, had a real prospect of resulting in the applicants not being granted the relief they sought. In their costs submissions, the applicants seek to emphasise that the respondents did not file evidence in response to the applicants (see eg. at [5(i)], [10]-[11] of the applicants’ submissions on costs). That must be seen in context. First, as just noted, the respondents’ solicitors advised the applicants’ solicitor on 21 March 2022 of the fact that the applicant had been referred to the Minister for the potential exercise of power in s 195A or s 197AB and that the Minister sought to amend the existing timetable and adjourn the hearing to await that outcome. The applicants’ consent was sought (but not given). In that email, the respondents indicated that if the matter did proceed to a hearing, the respondents did want to file evidence. Secondly, in order for the respondents to press their arguments, it was not necessary for them to call affidavit evidence about efforts to remove the applicants and/or the appropriateness of detention at the residential location sought by the applicants. The points above turned on the content and construction of a letter (put in evidence by the applicants) and an analysis of Federal Court authority, and also on the Full Federal Court’s judgment in AZC20.
The respondents deny that they capitulated. The relief sought by the applicants was, ultimately, an order requiring their removal from Australia. That was not done, as the Secretary did not belatedly perform the duty in s 198(1) to remove the applicants from Australia, which the applicants alleged existed. They were, as noted, each granted a visa. But the applicants did not in these proceedings seek the grant of a visa under s 195A of the Migration Act (or by any other means). As noted above, this is said to be a proceeding in which an event has occurred, in the exercise of a personal non-compellable power, with the result that the applicants obtained a status which “overwhelms” or “overtakes” the relief sought. That is not a “capitulation”.
Given the matters noted above, as well as that the applicants had been put on notice (before the proceedings had commenced) of the position that no request engaging s 198(1) had been made, and the existence of the Minister’s (ultimately successful) appeal against AZC20, there is no sensible reason to think that the respondents decided to “capitulate” upon the applicants commencing proceedings.
The respondents also submit that the applicants’ argument that they achieved the substantive outcome that they sought in these proceedings ought not be accepted. Even if they had, that does not lead to the applicants obtaining a costs order. There was nothing unreasonable in the Minister defending the proceeding and, as McHugh J explained in Lai Qin, if it appears the parties have “acted reasonably”, the proper exercise of discretion will usually mean there is no order as to costs. In Lai Qin itself, the plaintiff had applied for a protection visa, which had been refused. The Minister later granted one, pursuant to s 417, while the High Court proceeding was on foot. That made the High Court proceeding moot. In practical effect, the plaintiff “got what she wanted”. McHugh J noted as much.[14] But no costs order was made in favour of the plaintiff. In Plaintiff M40/2015, the plaintiffs sought to quash the revocation of a residence determination. If such relief were granted, the plaintiffs could have resided in the community (as they had been). They were granted visas while the proceeding was on foot, which also had the effect of allowing the plaintiffs to reside in the community. No costs were ordered. See also Shellharbour City Council v Minister for Local Government[15] and Woollahra Municipal Council, where one party obtained the substantive result it had sought in litigation on account of a decision made by government, but no costs were awarded as resistance by the other party to the proceedings was not unreasonable. The same outcome would apply here.
[14] His Honour observed at 624 that “the prosecutrix, having obtained the relief she sought, naturally has not proceeded with her action in this Court” (respondents’ emphasis retained)
[15] [2017] NSWCA 256 at [14]
The fact that the Minister might theoretically have granted the applicants a visa at some prior time (under s 195A or otherwise), in the performance of a personal non-compellable power, says nothing about whether the Secretary “capitulated” in these proceedings.
The applicants rely upon Kheir v Secretary to the Department of Justice and Regulation.[16] That was a case in which the plaintiff sought mandamus and then, after the proceeding was commenced, the relevant duty was performed (thus rendering the application for mandamus moot). That is not this case. As noted above, the Secretary did not belatedly perform the duty the applicants sought (ie. to remove him from Australia under s 198). Further, that judgment plainly turns on the particular factual circumstances of that case, and Richards J was critical of the conduct of the defendant. There is said to be no basis for such criticism here. The applicants also refer to Grant v Secretary, Department of Home Affairs.[17] That case is said to be readily distinguishable. There, Murphy J had held a final hearing prior to the grant of a visa pursuant to s 195A and, by the time he was aware of this, he had “substantially completed drafting the orders and reasons for judgment”. His Honour had thus determined at [20], at the time of visa grant, that the applicant would have obtained orders “substantially in line with those” he sought. His Honour distinguished Lai Qin and Plaintiff M40/2015 factually for that reason at [21] and observed at [23] that this case fell within a “(rare) exception” identified in Lai Qin, namely that the applicant was “almost certain” to have succeeded.[18] Here, there was no hearing, let alone an assessment by the Court of the parties’ submissions and the preparation of reasons for judgment and final orders. The circumstances are said to be vastly different to the present case. The applicants’ reference to Murphy J’s statement about “liberty” does not provide a basis for an award of costs. The applicants did not here seek orders that they be at liberty in the Australian community. Murphy J also did not say that because an application was “directed at his liberty”, a costs award follows. His Honour stated that the point was “not without force”, rather than some determinative matter and, as just noted, the critical reason for granting costs was because “it is possible to say that the applicant would have been substantially successful”. That is not the case here. Further, as noted above, both Lai Qin and Plaintiff M40/2015 were matters “directed” at the plaintiffs’ “liberty”, in Lai Qin, seeking to quash a decision refusing to grant a protection visa (McHugh J noting that the plaintiff had been held in immigration detention throughout her time in Australia and being subject to “immediate deportation”) and, in Plaintiff M40/2015, securing a return to community, rather than held, detention. No costs orders were made.
[16] [2019] VSC 76
[17] [2022] FCA 261
[18] see, to similar effect, Re Bonnie View Petroleum Pty Ltd (In Liq) [2018] VSC 489 at [52]
In reply, the applicants contend again that the respondents, in effect, capitulated on the question of detention and also acted unreasonably, given the timing of the grant of the visas.
RESOLUTION
In my view, the appropriate outcome on costs in these proceedings is an order that there be no order as to costs. First, I do not accept that the grant of visas to the applicants constituted a “capitulation”. As the respondents note, the visa grants involved an exercise of a personal non‑compellable power by the Minister. I assume that the Minister intervened for reasons of policy. I have no evidence before me as to what was put to the Minister, or what may have otherwise been in the Minister’s mind, in granting the visas. It is reasonable to suppose, however, that those considerations would have included the circumstances in which the applicants were brought to Australia from a regional processing country for a temporary purpose, the length of time they had spent in detention, both in Australia and in the regional processing country, and the obvious need to find a resolution to meet the circumstances of each applicant in the medium to long term. The Minister’s intervention was, to my mind, not an exercise of capitulation but an exercise of common sense.
Secondly, the outcome of the legal issues in the proceedings was uncertain. The likelihood of the Court being able to grant relief ending or altering the nature of the applicants’ detention was small. The jurisprudence on that issue tended not to favour the applicants.[19]
[19] see the Full Federal Court decision in AZC20 cited above
On the other hand, the applicants’ prospects of success in obtaining orders compelling the respondents to meet an obligation to remove the applicants from Australia at their request was somewhat greater, at least to the point of a court ordered mediation in order to explore the available options. Of course, the outcome of any court ordered mediation could not be known in advance.
I conclude that the outcome on the legal issues in these cases was, at the time of Ministerial intervention, uncertain.
Thirdly, I have considered the issue of costs in a number of “medevac cases” following Ministerial intervention several times. In FCZ20 v Minister for Home Affairs (No 2)[20] I ordered that there be no order as to costs in circumstances not dissimilar to the present, although in that case I had provided an obiter dicta judgment following Ministerial intervention in FCZ20 v Minister for Home Affairs.[21]
[20] [2022] FedCFamC2G 148
[21] [2022] FedCFamC2G 15
More recently, in FKU20 v Minister for Home Affairs[22] I followed my earlier decision in FCZ20 (No 2) to order that there be no order as to costs in circumstances similar to FCZ20, except that in that case there had been no judgment whether obiter or otherwise.
[22] [2022] FedCFamC2G 343
In both of those cases an additional factor in my mind was that there were ongoing proceedings which were likely to result in a judgment that could be the subject of a costs order. In the present cases, the legal issues have been differently framed and there will be no judgment. That factor, however, does not alter my view that there is nothing in the conduct of these matters by any of the parties which calls for an order for costs and that the outcome of the proceedings is one where costs should lie where they fall.
CONCLUSION
I will order that there be no order as to costs in each of these proceedings.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 20 May 2022
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