Graham v Minister for Immigration and Border Protection (No 2)

The case of Graham v Minister for Immigration and Border Protection (No 2) involved the applicant, Graham, challenging a decision to place him in immigration detention at the Goulburn Correctional Centre. The Minister for Immigration and Border Protection was the respondent. The Federal Court was tasked with deciding whether an order for costs should be made in the Minister's favour, following a successful resistance to an application for judicial review.

The legal issue before the court was whether costs should follow the event in the Minister's favour. The Minister argued that costs should be awarded to him despite the applicant being outside Australia, and proposed to offset any awarded costs against a costs order made in the applicant’s favour in the High Court. The court needed to consider whether the futility of enforcing a costs order, given the applicant's location, justified refusing such an order.

The court found that the futility of enforcing a costs order did not preclude an order for costs in the Minister's favour. It was noted that futility is not a basis to refuse costs, as supported by several precedents. Given the Minister's successful resistance of the application for judicial review, the court concluded that it was appropriate for costs to follow the event in the Minister's favour. Therefore, it ordered that the applicant pay the Minister's costs of the application. This decision aligns with the principle that costs should reflect the outcome of the proceedings, particularly where a party has successfully defended against a challenge.