Plaintiff M40/2015 v Minister for Immigration and Border Protection & Anor; Plaintiff M41/2015 v Minister for Immigration and Border Protection & Anor
[2015] HCATrans 97
[2015] HCATrans 097
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M40 of 2015
B e t w e e n -
PLAINTIFF M40/2015
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
Office of the Registry
Melbourne No M41 of 2015
B e t w e e n -
PLAINTIFF M41/2015
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 22 APRIL 2015, AT 9.32 AM
Copyright in the High Court of Australia
____________________
MS K.L. WALKER, QC: If the Court pleases, I appear in both matters with MR N.M. WOOD and MS J.D. WATSON. (instructed by Allens Lawyers)
MR C.J. HORAN: May it please the Court, I appear for the defendants in each matter. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Ms Walker.
MS WALKER: If the Court pleases, there has been a development of which I believe the Court has not been informed which is that both plaintiffs have now been granted bridging visas. In those circumstances the plaintiffs have been released from detention and, of course, in that sense have achieved the outcome they sought to achieve by bringing these proceedings. The consequence of that is that the parties are agreed that the proceedings should be dismissed, but the parties are not agreed about whether any order for costs should be made. The plaintiffs each seek an order for costs. If it is convenient I could hand up a short draft minute of order.
HIS HONOUR: I do not think I need a draft of that form of order.
MS WALKER: No.
HIS HONOUR: Have you seen the defendants’ submissions?
MS WALKER: Yes, your Honour, I have seen those.
HIS HONOUR: I saw those about 10 minutes ago and have read them, generally familiar with those and have looked at the decision to which reference is made of Lai Qin 186 CLR 622. So that is the state of my understanding at the moment, Ms Walker. Why should you get an order for costs?
MS WALKER: Can I start perhaps, your Honour, by addressing the matter of principle? As I understand the defendants’ submissions the contention is that the Court’s discretion in relation to costs in this kind of circumstance is confined by the way in which the matter was approached by Justice McHugh in Lai Qin in the sense that it is said that – I will just find the relevant passage:
The court might order costs in cases where one of the parties had acted unreasonably, or (in rare cases) where one party was almost certain to have succeeded if the matter had been tried.
That is at paragraph 6.3 of the defendants’ submissions. Now, the plaintiffs contend that Lai Qin ought not to be understood as confining this Court’s discretion to award costs. The discretion to award costs ‑ ‑ ‑
HIS HONOUR: Let it be assumed for the purposes of argument that those are not the only two circumstances in which a plaintiff in the position of these plaintiffs should have his or her costs.
MS WALKER: Yes, thank you, your Honour.
HIS HONOUR: What is it about this case that would say that the plaintiffs should have their costs in this set of circumstances?
MS WALKER: There are a number of relevant factual matters, your Honour, the first being a matter that I have, in a sense, foreshadowed which is that the plaintiffs have been in detention - they say they ought not have been in detention – and sought an order in the nature of habeas corpus directing their release. The consequence of the Minister’s decision, made after the commencement of the proceedings, is that the plaintiffs have, indeed, been released. So, in that sense, they have obtained the outcome that they sought to obtain by the institution of the proceedings.
Now, in addition to that, your Honour, there are a number of relevant matters in relation to the communications between the parties prior to the commencement of the proceedings. Can I refer – and I am sure I need not take your Honour to the materials, but I will refer your Honour to the relevant ‑ ‑ ‑
HIS HONOUR: There is one point I want to be quite plain about. Is the affidavit of Ms Pope to be read in Court, because if it is to be read in Court it is available for public search and that is a matter about which I wish there to be no doubt? As things presently stand that affidavit has not been read. It is not available for search. It contains a range of statements.
MS WALKER: It does, your Honour. I think it is not necessary for the plaintiffs to rely on Ms Pope’s affidavit. The plaintiffs can rely on the affidavit of Mr Stephens.
HIS HONOUR: The reason I am so concerned about it is the content of what appears in that affidavit.
MS WALKER: I do understand that, your Honour, yes.
HIS HONOUR: I do not want there later to emerge some dispute about whether the affidavit has or has not been read, whether it can or cannot be searched. As things presently stand, my understanding is, subject to what Mr Horan later tells me, not read, not searchable.
MS WALKER: That is certainly my understanding, your Honour, and if that position were to change then it may be that orders would be sought in relation to confidentiality of that affidavit, but that need not be addressed at this point. I am not proposing to read that affidavit and I do not know if my learned friend is ‑ ‑ ‑
HIS HONOUR: No. I interrupted the flow of your argument.
MS WALKER: Thank you, your Honour. The passages that I wished to refer your Honour to are passages from Mr Stephens’ affidavit. It is convenient, I think, your Honour, to focus on the affidavit filed in the M40 proceedings.
HIS HONOUR: Yes.
MS WALKER: By and large the correspondence between the parties applies – or was concerned with both proceedings and so, although there are some factual differences between the circumstances of the two plaintiffs, the correspondence that I am proposing to take your Honour to deals with both plaintiffs.
The first matter, your Honour, is a letter – perhaps I should refer your Honour to the paragraph first. Paragraph 22 of Mr Stephens’ affidavit deposes to a letter sent from a Mr Guy Coffey to the Minister on 2 December and that letter is found at tab 21 of the exhibits. That letter sought either a new residence determination or a bridging visa to enable release of the plaintiffs from detention and flagged the possibility of legal proceedings – the plaintiffs reserved their rights in that regard.
On 23 December after Allens was retained in the matter – and this is dealt with at paragraph 26 of Mr Stephens’ affidavit – a letter was sent from Allens to the Minister, again seeking to have the Minister either make a new residence determination or grant a bridging visa and in that case, in addition enclosing draft initiating process to indicate the nature of the claims that would be pressed were a favourable outcome not to occur.
Now, in relation to that second letter, the letter from Allens, a holding response was sent to Allens by the Minister on 12 January and that is dealt with at paragraph 28 of Mr Stephens’ affidavit – no substantive response on that date – and a holding response was sent to Mr Coffey on 14 January – that is paragraph 29 of Mr Stephens’ affidavit.
Shortly thereafter, on 23 January, documents were provided to the plaintiffs pursuant to an FOI request and those documents revealed that preparations for a bridging visa had commenced - your Honour will see that at paragraph 31 – but still, at this stage, no substantive response to either the letter dated 2 December or the letter dated 23 December.
Following receipt of those FOI documents, your Honour will see at paragraph 32 a further letter was sent by Allens to the Minister quite clearly seeking to avoid the necessity for litigation because it was understood that preparations for a bridging visa were under way and asking when a decision might be expected. At paragraph 33 your Honour will see a holding response on 6 February 2015 and then at paragraph 33 a response on 9 February advising that the Minister had declined to exercise the power under section 195A.
That really concludes the correspondence, but the important point, your Honour, is that there has never been a substantive response to either the letter of 2 December 2014 or 23 December 2014 insofar as those letters sought a new residence determination. There has been advice that the power under section 195A would not be exercised, but no substantive response to the matters raised in the correspondence in December of last year.
HIS HONOUR: Now, just interrupting you there, what has now happened is an exercise of 195A power, I assume. Is that an assumption I should make?
MS WALKER: Yes, that is the ‑ ‑ ‑
HIS HONOUR: The grant of the bridging visa and there was a temporary safe haven, was there not, as well?
MS WALKER: That is correct, your Honour, yes. Under section 195A we have been advised by letter that that is what has occurred.
HIS HONOUR: Yes.
MS WALKER: No explanation for that change of position by the Minister has been given, simply a letter informing the plaintiffs, directed to their legal representatives that the visa had been granted, even though the Minister had declined to do that in February. Following the declining of the visa in February the plaintiffs saw no other option than to institute proceedings to seek to obtain release from detention.
Although the decision that the plaintiffs were challenging was the decision to revoke their residence determination, and the decision ultimately made by the Minister is of a different character – it is a decision to grant a visa – nonetheless, the Minister’s decision gives the plaintiffs substantively what they sought, which was release from detention. So in those circumstances the plaintiffs contend that it is appropriate for the Court to make a costs award. In that respect, your Honour, the case is ‑ ‑ ‑
HIS HONOUR: Why? I understand the point you are making to be capable of reduction to two propositions: one, there was notice – ample notice before action taken. After action taken, the plaintiffs achieved what they wanted. Is it more complex than that?
MS WALKER: It is more complex in the sense that there has been a failure on the Minister’s part to respond to correspondence and, in addition, a failure to give the plaintiffs any notice that any further bridging visa was even under consideration. In that respect the case is on all fours with a decision of the Federal Court in a case called Pull v Minister for Immigration and Citizenship. I can hand up a copy if that would be of assistance.
HIS HONOUR: Please.
MS WALKER: Now, your Honour, it may be most convenient to take your Honour to the nature of the submissions made by the applicant in that case at paragraph 25 of the judgment because it was very similar in the sense that it was a judicial review proceeding in relation to the detention of a plaintiff following a visa cancellation. Then, after the proceedings were instituted, the Minister granted a section 195A visa. At paragraph 25 the plaintiff made a number of submissions about the reasons why costs ought to be awarded in that case, in particular that the grant of the visa removed the controversy and that the relief sought was now futile because, in effect, the grant of the visa had achieved the very thing the proceedings sought.
Your Honour will see then at paragraph 27, following an outline of the principles – which I need not take your Honour to – the applicant outlines the conduct of the parties said there to be relevant to the question of whether costs ought to be awarded, the first point being a point that I have already made; the second point being equally applicable in the present case; the third point:
Prior to the litigation, there was never any indication that the Minister would grant the applicant this status.
Again, we would say that is likewise the case here in the sense that the Minister had refused the very visa that is now being granted, only back on 9 February. The applicant had invited the Minister to effectively exercise powers in order to release the applicant – again, we would say the same circumstances here - and received no response; at all times the Minister had a power which was not exercised; the applicant was deprived of liberty:
No explanation for the grant of the s195A visa has been offered by the Minister.
Following the grant the proceedings were discontinued. Now, we make very much the same arguments because we say the facts are relevantly very similar. Your Honour then might turn to paragraph 35 ‑ ‑ ‑
HIS HONOUR: Just before you pass to that paragraph, what am I to make of paragraph 29(3):
The Minister refused to settle, even when confronted squarely with the question of costs.
What am I to make of that?
MS WALKER: Well, that, we would say, is not on all fours with this case, except insofar as we have said the Minister has not settled the question of costs, but the parties are in agreement about the proper disposition of the proceedings. But, your Honour, that, in my submission, is not a determinative factor and the analysis of Justice Edmonds suggests that his Honour regarded a number of matters as significant: firstly, that the grant of the visa rendered the declaratory relief sought futile. We would say in this case likewise the relief sought in the nature of habeas corpus. His Honour observed at paragraph 38 that the applicant in Pull’s Case:
did not contend that the Minister acted unreasonably in opposing those proceedings –
and we would make that same concession. It is not necessary, in my submission, for your Honour to find that the Minister acted unreasonably. His Honour clearly regarded the Minister’s action in granting the visa as significant because it was, as his Honour put it at paragraph 41:
totally inconsistent with his position up to that point in time –
and there are a number of factual matters there. His Honour then says at paragraph 42:
The Minister’s change of position, unmoved by any external event and otherwise unexplained, leads me to the view that the applicant should have his costs –
Now, your Honour, we would say that factor is certainly present in the current proceedings. Indeed, it is put as much in the submissions that have been filed by the defendants in paragraph 9.3 where it said:
the Court is not in a position to assess the considerations that bore upon the exercise by the Minister of his discretion under s 195A or his determination that it was in the public interest to grant the visas –
That is entirely correct, your Honour, because no explanation for that decision has been given, notwithstanding that a visa of that very kind was refused in February and, of course, the current grant has occurred very shortly after the issue of these proceedings. So, in our submission, the approach adopted by Justice Edmonds in Pull is of assistance.
We would further say that the case is quite distinguishable from Lai Qin, not simply in relation to the question of principle, but in that case there was a change of position by the Minister but there was a clear explanation for it and that is set out at page 627 of his Honour’s reasons. His Honour there observes that the explanation was that the plaintiff had married a person with Australian nationality and had a child and was then able to leave the country and obtain a spouse visa, but on a humanitarian basis.
The Minister granted a visa that did not require the plaintiff to leave the country.
So in that case there was a clear explanation for the change in position. In this case we have no explanation and, indeed, the Minister has chosen not to provide any explanation for that decision and has chosen then to rely on that failure to explain as a basis why it is said costs should not be awarded. We say that that failure to explain tends in favour of a grant of costs.
Can I also address the matters raised in paragraphs 9.1 and 9.2 of the defendants’ submissions. The first proposition is that the plaintiffs have not yet been granted an extension of time. That, of course, is correct, but one of the issues in the proceedings would have been whether any extension of time was even needed, so we say that factor cannot be given very much weight at all. Secondly, it is said that:
the relief sought by the Plaintiffs . . . is materially different from the outcome of the exercise of the Minister’s discretion –
Now, I have made this point already, but the plaintiffs’ position is that that is not correct. It is – has a component of it, the release from detention, that is precisely the relief sought. It is true that the grant of a visa gives the plaintiffs a different status than they would have had had they simply remained subject to a residence determination, but fundamentally, the plaintiffs have achieved the outcome that they sought to achieve by the bringing of proceedings. So unless your Honour has any further questions, those are the submissions of the plaintiffs.
HIS HONOUR: Thank you, Ms Walker. Yes, Mr Horan.
MR HORAN: Thank you, your Honour. Just addressing your Honour’s question about the Pope affidavit, the defendants do not propose to read that affidavit and it is unnecessary for the purpose of resolving the orders to be made.
HIS HONOUR: Thank you, Mr Horan.
MR HORAN: The Court has the defendants’ written submissions. We accept that, as I thought was made clear in those written submissions, that the exercise – the question of costs is in the exercise of the Court’s discretion and say that that discretion is guided, but not confined, by the principles considered by Justice McHugh in Lai Qin.
The two points I would make in response to the plaintiffs’ submissions are that, firstly, notwithstanding the terms of the correspondence prior to the hearing, the relief sought in the proceeding was, in substance, to reinstate the residence determinations that were the subject of the revocation decisions and the exercise of the discretion under section 195A to grant visas to the plaintiffs, including the bridging visas, is beyond the scope of any relief sought by the plaintiffs in these proceedings.
It is in that sense that we say that that is a materially different outcome to the matters that were agitated in the proceedings themselves. The Minister’s discretion under section 195A turns on broad criteria of public interest and the basis on which the Minister recently exercised his discretion to grant those visas is not before the Court. It was said that ‑ ‑ ‑
HIS HONOUR: But the power is a public interest power, is it not?
MR HORAN: It is, your Honour, and there were – I am not sure that these documents are in evidence, but there were in the documents disclosed to the plaintiffs, both under freedom of information and in these proceedings, indications that the matter would be reconsidered by the Minister at a subsequent time. So it was not a complete ‑ ‑ ‑
HIS HONOUR: I should say to you, Mr Horan, that that is not my impression from what I had read. My present impression was that the matter went to the Minister on a 195A basis and the Minister said no.
MR HORAN: Yes. Well, that certainly was the case, and that was the subject of the correspondence immediately prior to the commencement of the proceedings. The matters have since gone back to the Minister and a different outcome has eventuated. I perhaps cannot take the matter too much further because I have not put in any documents which indicate this but the exercise ‑ ‑ ‑
HIS HONOUR: No. Is the position that I face this, at least? Letters before action – it would be surprising if there had not been letters before action seeking a particular outcome – did not evoke a response that the plaintiffs regarded as satisfactory. The plaintiffs would go further and say there was no substantive response, but I suspect what presently matters is the letters before action did not evoke a response that the plaintiffs considered satisfactory, action brought – I have the sequence wrong. Immediately before action brought, 195A refused or not engaged ‑ ‑ ‑
MR HORAN: Declined.
HIS HONOUR: Declined, action brought, 195A engaged.
MR HORAN: Yes.
HIS HONOUR: Is it more complex than that?
MR HORAN: No. I could, perhaps at a general level without descending to the facts the exercise of those powers is not a “once and for all” matter. So it at least remained possible that those matters could come back before the Minister in light of changing circumstances.
HIS HONOUR: It does excite in the minds at least of some, Mr Horan, attention to something that you may find, I think, in the proceedings about the peremptory mandamus about detention at the unconstrained discretion of the Minister. Those are issues which do not arise in these matters. They are issues that may or may not ever arise, but I must confess I am struck by the notion of the ambit of the discretions that are relied on here.
MR HORAN: Yes. They are relieving discretions ‑ ‑ ‑
HIS HONOUR: Indeed.
MR HORAN: ‑ ‑ ‑ which do not go directly to the purpose of the detention, but they allow that detention to be lifted by the grant of visas.
HIS HONOUR: Yes.
MR HORAN: Now, here, the proceedings that were commenced were not directed to the grant of those visas and, unlike in a case like Lai Qin where the substantive issue was concerning the refusal of a protection visa and the ministerial intervention resulted in the grant of a protection visa, the present case is slightly different. It is really a matter of saying no more than that it is inaccurate to say that the plaintiffs achieved the outcome that they sought in the proceedings. They have achieved more than the outcome that they sought in the proceedings.
HIS HONOUR: Their status changed from unlawful non‑citizen to lawful non‑citizen, did it not?
MR HORAN: Yes, but that was not the outcome sought in the proceedings.
HIS HONOUR: Just so.
MR HORAN: In the proceedings the outcome – they would have remained unlawful non‑citizens. They would have remained ‑ ‑ ‑
HIS HONOUR: Liable to detention.
MR HORAN: They would have remained in a form of immigration detention, although it was detention in the community which was taken to be detention at a place covered in the definition of “immigration detention”. But subject to stringent conditions they now have bridging visas and are lawful non‑citizens at liberty in the community. The only remaining points I would make in relation to the principles in Lai Qin ‑ ‑ ‑
HIS HONOUR: I am sorry – does the bridging visa give them access to benefits that they would not have had as unlawful non‑citizens residing in the community under a residence determination?
MR HORAN: I would have to get instructions, your Honour. I believe so.
HIS HONOUR: Do not trouble about it.
MR HORAN: It is certainly a different status.
HIS HONOUR: Yes.
MR HORAN: One would expect a more beneficial status and although - I accept that the correspondence prior to the litigation raised that as a possible option that would avoid the commencement of proceedings, nonetheless the proceedings were not directed to that outcome and the correspondence was not couched in terms of “unless this action is taken we will commence proceedings and rely on these letters in relation to costs”.
The only remaining point is in relation to the case of Lai Qin – it is not, of course, necessary to say this case is on all fours factually because each case turns on its own particular facts, but the two points I would make about the consideration given by Justice McHugh in this case – the first goes to the explanation to which my learned friend pointed. That explanation for the ministerial intervention did not go to the question of the timing of that intervention, so it was not really an explanation for anything relevant to the issue that was raised on the costs application.
The second point is that Justice McHugh notes at page 628, when dealing with whether the failure to inform the solicitors for the prosecutrix that the matter was under consideration by the Minister was relevant to the exercise of the discretion, his Honour’s primary view was that matter was not relevant. The reason for that was expressed in the middle of that first full paragraph at page 628 where his Honour says:
If the action had gone on for hearing and the Minister had afterwards granted a visa, it is impossible to suggest that he should pay the costs
of the proceedings merely because during the proceedings he was reconsidering his earlier decision.
We say that it remained open to the Minister at any time to reconsider the exercise of his discretion in the public interest under section 195A and the fact that he did so now, at a relatively early point in the proceedings, does not indicate that he acted unreasonably in the sense to which Justice McHugh pointed in Lai Qin. It does not seem to be contended by the plaintiff that the Minister has conducted – or acted unreasonably in the conduct of these proceedings, and although we do not say that the discretion is confined by the principles expressed by his Honour, there is no reason not to apply the principle that his Honour expressed at page 625 where his Honour concludes:
If it appears that both parties have acted reasonably in commencing and defending the proceedings . . . the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.
In the absence of any contention that the Minister has acted unreasonably in relation to the defence of these proceedings, we say that that should be the outcome, that there should be no order as to costs. If your Honour pleases.
HIS HONOUR: Thank you. Yes, Ms Walker, anything in reply?
MS WALKER: Just two short points, your Honour. The Minister’s submission seems to be predicated on the proposition that a person in the plaintiff’s position in detention who is refused a section 195A visa, as occurred here, should then just wait to see if perhaps that power will be exercised again. Once it has been refused, we say that it was entirely reasonable to bring proceedings and then the change in circumstances reveals that those proceedings really ought not have been necessary. Secondly, your Honour, the Minister should not be able, in my submission, to avoid costs by exercising a power that gives the plaintiffs more than they sought. The fact of the matter is the plaintiffs have got what they sought.
HIS HONOUR: That has a certain piquancy that submission, does it not, Ms Walker, that the opposite party should not be able to avoid costs by giving you more than you sought? There we are. Yes.
MS WALKER: Thank you, your Honour.
HIS HONOUR: Each of the plaintiffs commenced proceedings in this Court against the Minister for Immigration and Border Protection and the Commonwealth by filing an application for an order to show cause on 25 March 2015. Although there are some differences between the circumstances of each plaintiff, those differences are not matters that need be noticed for the purposes of determining the issue of costs which must now be decided.
By their proceedings, each plaintiff sought certiorari to quash a decision of the Minister under section 197AD of the Migration Act 1958 (Cth) to revoke a residence determination that the Minister had made with respect to the plaintiff. Each plaintiff also sought a declaration that the decision of the Minister to revoke the residence determination was invalid and sought habeas corpus directing the Commonwealth to release the plaintiff from immigration detention within the meaning of the Act. As was explained at the time of the first directions hearing in this matter, the writ of habeas corpus was sought on the footing that, but for what was alleged to be the invalid revocation of the residence determination, there would be a current residence determination permitting each plaintiff to live in the community in accordance with the terms of that determination.
Each application was brought on for directions on 1 April 2015 and directions were given for the future conduct of the matter. On the matters returning to Court this morning the parties are agreed that further prosecution of the proceedings is unnecessary because, on 20 April 2015, the Minister exercised his power under section 195A of the Act to grant to each plaintiff a Bridging E (Subclass 050) visa valid for a period of 12 months, and a Humanitarian Stay (Temporary) (Subclass 449) visa valid for a period of seven days. Upon the grant of those visas each plaintiff was released from immigration detention.
It is also common ground between the parties that on 9 February 2015, which is to say approximately a month and a half before proceedings were begun in this Court, the Minister had chosen not to exercise powers under section 195A of the Act to grant either plaintiff a bridging visa or other visa which would permit the plaintiff to remain in Australia.
The parties are agreed that each proceeding may stand dismissed. Each plaintiff, however, seeks an order that he have his costs of the proceeding. The Minister and the Commonwealth submit that there should be no order as to the costs of either proceeding.
In support of the application for costs, each plaintiff points to the communications that passed between the representatives of the plaintiffs and the Department before action was brought. In those communications those representing the plaintiffs made plain that they challenged the revocation of the residence determination that had been made and sought to have the Department, in effect, advise the Minister to permit the plaintiffs to again take up residence in the community.
The plaintiffs would say that they never received any substantive response to the various letters which they sent to the Department before action was commenced. The plaintiffs would further point to the fact that, on 9 February, the Minister declined to exercise power under section 195A and the plaintiffs would say, in effect, that only by bringing action as they did on 25 March 2015 were they able to achieve their release from detention. They submit that in the events that have now happened it is apparent that the proceedings which were instituted need not have been instituted. The costs which they have incurred in the prosecution of those proceedings need not have been incurred. The plaintiffs submit that the Minister or the Commonwealth, or both, should pay the costs.
There is no dispute that the parties being agreed that there need be no hearing of the merits of the proceedings, the Court should not try a hypothetical action between the parties. As Justice McHugh said in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624, to try a hypothetical action between the parties “would burden the parties with the costs of a litigated action which by settlement or extra‑curial action they had avoided.”
In Lai Qin, Justice McHugh referred to circumstances which, in his Honour’s opinion, bore upon the issue of costs that had to be determined in that case. It may be accepted, for the purposes of this matter, that, as the plaintiffs submitted, the decision in Lai Qin does not seek to chart the metes and bounds of the discretion that must be exercised in determining whether to make an order for costs in circumstances of the kind that now arise.
It is relevant to notice, however, that in each of the present cases it may be accepted that each plaintiff had an arguable case. It is also relevant to inquire whether it is shown that the defendants, or in particular, the Minister, acted unreasonably in defending the proceedings which were instituted. These are not cases in which it would be possible, at this stage, to make any confident prediction of the outcome of the litigation. The central issue which bears upon whether the Minister or the Commonwealth should pay the costs of the plaintiffs is whether it is shown that the Minister acted unreasonably, either in not acceding to the plaintiffs’ demands before action was brought, or in acting under section 195A only after action was brought.
In considering that question 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.
Events having taken the course which they have in these matters, I am not persuaded that this is a case in which the plaintiffs should have their costs. In my opinion the costs of the proceedings, including the costs of the proceedings today, should lie where they fall. The only order that will be made in each matter is application dismissed.
Is there any matter which counsel needs to raise?
MS WALKER: No, your Honour.
HIS HONOUR: There will be orders in those terms. Adjourn the Court.
AT 10.20 AM THE MATTERS WERE CONCLUDED
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