Federal Court of Australia Grant v Secretary of Department of Home Affairs [2022] FCA 261 File number: VID 619 of 2021 Judgment of: MURPHY J Date of judgment: 22 March 2022 Catchwords: COSTS – where application was rendered moot by post – hearing decision by respondent – applicant granted a visa after final hearing but prior to delivery of judgment – principles regarding the Court's discretion to award costs where there has been no determination on the merits – where satisfied that the applicant would have been substantially successful – applicant awarded costs Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M, 37N(4), 43(2) Migration Act 1958 (Cth) ss 195A, 196, 197AB, 197C, 198, 198AD, 198AH, 417 Cases cited: DSE (Holdings) Pty Ltd v inter TAN Inc [2004] FCA 1251 Kheir v Secretary to the Department of Justice and Regulation [2019] VSC 76 Plaintiff M40/2015 v Minister for Immigration and Border Protection [2015] HCATrans 97 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 26 Date of last submission/s: 4 February 2022 Date of hearing: Heard on the papers Counsel for the Applicant: Mr M Albert and Mr M Guo Solicitor for the Applicant: Human Rights for All Pty Ltd Counsel for the Respondent: Mr N Wood and Ms C Roberts Solicitor for the Respondent: Australian Government Solicitor ORDERS VID 619 of 2021 BETWEEN: GRAEME GRANT (A PSEUDONYM) Applicant AND: SECRETARY OF DEPARTMENT OF HOME AFFAIRS Respondent order made by: MURPHY J DATE OF ORDER: 22 MARCH 2022 THE COURT ORDERS THAT: 1. The Respondent pay the Applicant's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MURPHY J: 1 At one time this proceeding raised interesting and important questions of statutory interpretation, and an asserted right or entitlement to be removed from Australia to a safe country and in the meantime to be held in immigration detention in the residential home of a friend. After the hearing of the case, but before delivery of judgment, the applicant, who brings this proceeding under a pseudonym, was granted a visa under s 195A of the Migration Act 1958 (Cth) (the Act). That was a better result for him than he could have achieved in the litigation. Now, all that remains of the dispute is who should pay the costs of the proceeding. For the reasons I explain I consider the respondent, the Secretary of the Department of Home Affairs, should pay the applicant's costs. FACTUAL AND PROCEDURAL BACKGROUND 2 The applicant is a 25 year old stateless man of Rohingya ethnicity. He fled Myanmar to avoid persecution and in October 2013, one week after turning 17 years old, he arrived at Christmas Island by boat, without a visa. He was taken to the regional processing centre at Manus Island, Papua New Guinea (PNG). 3 By 2015, while detained in PNG, he developed serious mental health problems. In May 2015 he was brought to Australia for the temporary purpose of mental health treatment, including inpatient psychiatric treatment, and was then returned to PNG in October 2015. Then, in May 2019 while still in PNG, the applicant was diagnosed as suffering from a major depressive disorder with psychotic symptoms including a long and consistent history of pervasive auditory hallucinations and post-traumatic stress disorder. He was diagnosed as having a depressed mood with a sense of hopelessness, reduced appetite, significantly disturbed sleep, poor concentration, poor memory and significant suicidal ideation. Under the since cancelled "medevac" provisions of the Act he was again brought to Australia on 7 June 2019 for the temporary purpose of psychiatric assessment and treatment. 4 After arriving in Australia the applicant underwent some psychiatric assessment and treatment. During this time, he was detained in three hotels designated as "alternative places of detention" under the Act. From 17 December 2020 until the hearing of this application on 9 November 2021, the applicant was detained at the Park Hotel in Carlton, Victoria where he occupied a small room, on his own, with windows that were fixed so that they could not be opened, and with no fresh air. 5 Anyone who endured the lengthy Melbourne 'lockdowns' in recent years, or who has endured even two weeks mandatory quarantine in a hotel upon return to Victoria from interstate or overseas, will know how mentally trying it must have been living with such restrictions for more than 10 months. Even more so for a young man with serious mental illness. I was satisfied on the medical evidence that the conditions of the applicant's detention from June 2019, and particularly from December 2020 which required that he live alone in a small hotel room with little or no access to the outdoors and fresh air, were a material cause of his current mental health problems. The applicant described the conditions of his detention as "just unbearable". THE APPLICATION 6 The applicant commenced a proceeding on 24 October 2021 in the Federal Circuit Court and Family Court of Australia. On 25 October 2021 the proceeding was transferred to this Court. The applicant sought: (a) a final order in the nature of mandamus to require the respondent to perform or cause to be performed the duty under s 198 of the Act to remove the applicant from Australia, as soon as reasonably practicable, to a country other than Myanmar, PNG or Nauru; (b) a final order to restrain the respondent from removing the applicant from Australia to Myanmar, PNG or Nauru; and (c) an interlocutory order to require the respondent, pending the performance of the duty under s 198, to cause the applicant to be detained in immigration detention at the home of a friend in Wheelers Hill, Victoria, where the applicant would be accompanied and restrained by one or more of the respondent's officers or by other persons directed by the respondent. The proceeding involved questions as to the proper construction and interaction of ss 196, 197C, 198, 198AD and 198AH of the Act and their application in the circumstances of the case. 7 The matter was heard on an expedited basis on 9 November 2021 and judgment was reserved. 8 On 12 November 2021, the Minister for Home Affairs exercised her power under s 195A of the Act to grant the applicant a Humanitarian Stay (Temporary) (subclass 449) visa and a Bridging E (subclass 050) visa (the visa). The applicant now has the status of a "lawful non-citizen" and is living in the community. 9 On 13 November 2021, the applicant's solicitors wrote to the Court advising that the application no longer need to be determined by the Court. On 7 January 2022, by consent of the parties, I ordered that the applicant have leave to file a notice of discontinuance, the parties file and serve any evidence and submissions as to costs, and the question of costs be determined on the papers. THE SUBMISSIONS AS TO COSTS 10 The applicant submits that the respondent should be ordered to pay his costs of this proceeding on an ordinary basis. He says that his substantive application was "at a human level…solely about liberty", and that this is reflected by the first, penultimate and last paragraphs of his written submissions for the final hearing which said the following: At a human level, this is a case solely about liberty – 'the most elementary and important of…basic common law rights'. …As the Full Court of this Court very recently observed: s 189 causes suffering to the detainee and cost to the Commonwealth. It should not be permitted to continue longer than necessary. After almost 900 days in detention and associated 'irreparable harm', Mr Grant should re-gain his liberty elsewhere and the Respondent should be forced by court order to start pursuing that end according to law. 11 He contends that by reason of the Minister's belated, unilateral action, in granting him the visa, his application was rendered moot. Specifically, he argues that the respondent should pay his costs because: (a) the ordinary rule is that costs follow the event, and the event being sought in this case was liberty. Through the Minister's action, the applicant received "the substantive outcome that he sought in this proceeding", citing Kheir v Secretary to the Department of Justice and Regulation [2019] VSC 76 at [23]-[24] (Richards J); (b) the fact that s 195A was exercised just three days after the final hearing and not days before led to a significant waste and inefficient use of this Court's time and resources. He said this is a direct breach of the respondent's obligations under s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA). Section 37N(4) requires that this must be taken into account on the question of costs; and (c) all costs of this proceeding would have been avoided had the applicant been granted a visa after the proceeding was issued and before he incurred costs. The applicant says that the decision to exercise the Ministerial power mere days after judgment was reserved was entirely in the respondent's control and that the decision should have appropriate costs consequences. 12 He argues that each of these three reasons have heightened significance as the respondent is an emanation of the Crown, which must act and be seen to act, as a model litigant. He says that by wasting time and expense by taking the belated action to grant the applicant a visa which rendered the proceeding moot, especially in the inherently urgent context of prolonged detention, the respondent did not act in a manner above what may be expected from other litigants. 13 The respondent opposes the application for costs and submits that the appropriate order is for each party to bear their own costs. He submits that because the applicant did not seek habeus corpus the applicant's case was not about liberty. He says that the applicant did not obtain the substantive outcome that he sought in this proceeding because he did not seek that he be granted a visa under s 195A of the Act or otherwise (and nor could he reasonably have done so). 14 He says that it is unnecessary for the Court to determine whether or not the applicant's claims would have succeeded because the claim for that relief has been rendered moot by the grant of the visa by the Minister, who is not a party to the proceeding. The respondent says that determining the applicant's claims on their merit for the purpose of determining the applicant's costs application would be a burden on the Court's resources, and would also give rise to complications in circumstances where further relevant cases have been decided in the intervening period since the Court reserved judgment on 9 November 2021. 15 The respondent relies on the decision in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 as explained by Hayne J in Plaintiff M40/2015 v Minister for Immigration and Border Protection [2015] HCATrans 97. In Lai Qin, an application by the prosecutrix for judicial review of a tribunal decision was rendered moot by the Minister exercising his personal discretion to grant her a protection visa under s 417 of the Act. The applicant sought her costs on the basis that the Minister should have advised her prior to the commencement of the proceedings that he was reconsidering her application. McHugh J explained (at 625) that "[i]f 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". McHugh J held that the prosecutrix had acted reasonably as she had an arguable case (at 626), and it was reasonable for the Minister to defend the tribunal's decision (at 627), and accordingly his Honour made no order as to costs. 16 In Plaintiff M40/2015, the plaintiffs sought orders to quash a decision of the Minister to revoke residence determinations made in relation to them (that is, "community detention" determinations) under s 197AB of the Act. If the applications had succeeded, the residence determinations would have been operative, and the plaintiffs would have resumed living in the community rather than being held in an immigration detention facility. However, before the hearing the Minister granted visas to both applicants under s 195A. Hayne J rejected the plaintiffs' applications for costs, applying Lai Qin and noting that the defendants had not been unreasonable in defending the proceedings. His Honour also observed the following in his ex tempore reasons: …[I]t 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. (Emphasis added). 17 The respondent argues that analysis applies here a fortiori. He says that the plaintiffs in Plaintiff M40/2015 got more than they sought (liberty on a visa, rather than merely liberty in community detention). Whereas in this case, the respondent submits that the applicant did not seek orders to be at liberty in Australia at all; but the Minister now having granted him the visa, he has a status ("lawful non-citizen") that "overtakes" and "overwhelms" the relief previously sought (mandamus, injunction and change in location of detention). The respondent submits that absent unreasonable conduct by the respondent in the litigation, it clearly follows that there should be no order for costs. CONSIDERATION 18 Pursuant to s 43(2) of the FCA the Court has a wide discretion in relation to costs, which is not to be read down otherwise than by judicial principle consistent with its amplitude: DSE (Holdings) Pty Ltd v inter TAN Inc [2004] FCA 1251 at [14] (Allsop J, as his Honour then was). In the absence of special circumstances costs follow the event (Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at 234-235 [11] (Black CJ and French J, as his Honour then was)). However, that does not answer the question as to whether costs should be ordered when, as in the present case, the application was not determined. 19 In my view in the circumstances of this case it is appropriate to exercise the discretion by ordering the respondent to pay the applicant's costs. 20 I say this, first, because this is a case where it is possible to say that the applicant would have been substantially successful, had he not been granted the visa. I heard the application on 9 November 2021. By 13 November 2021, when my chambers were notified that the applicant had been granted the visa and therefore wished to discontinue the proceeding, I had substantially completed drafting the orders and reasons for judgment. Had I been required to decide the application I would have made orders substantially in line with those the applicant sought in the proceeding. 21 In Lai Qin McHugh J said at 626: Having read the Tribunal's decision and the affidavit filed in support of the application for the grant of an order nisi, it seems to me that, although the prosecutrix had an arguable case, she did not have strong prospects of success. If I had to make a prediction about the outcome of her application, I would think that it would probably have failed. However, as I have said it is not the function of a court on a costs application - in most cases at all events - to make a prediction as to the outcome of a hypothetical case. It is enough that an applicant has acted reasonably. (Emphasis added.) In the circumstances of the present case, to say that that applicant was likely to be substantially successful does not involve making an impermissible prediction about the outcome of a hypothetical case. The decision in Lai Qin is plainly distinguishable from the present case. The decision in Plaintiff M40/2015 is also distinguishable. In that case the applicant was granted a visa after a directions hearing and prior to the matter being heard. In the hearing of the costs application Hayne J said that "these are not cases in which it would be possible, at this stage, to make any confident prediction of the outcome of the litigation". In the present case the hearing was complete; and the orders and judgment were in an advanced state of preparation when the case was discontinued. 22 In Lai Qin at 624-625, McHugh J set out two exceptions to the principle that no order should be made as to costs in proceedings where the matter has not been heard on its merits (although the width of the Court's discretion suggests that those exceptions are not exhaustive). The first exception is where one of the parties has acted so unreasonably that the other party should obtain the costs of the action. That is not this case; I do not accept the applicant's submission that the respondents acted unreasonably. 23 The second exception proposed by McHugh J is where one party would almost certainly have succeeded if the matter had been fully tried. His Honour said (at 625) as follows: …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. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. In my view the present case falls within that (rare) exception. 24 Second, it can be accepted that the relief the applicant sought would have produced a different (and for him, lesser) result than that which he obtained through the grant of a visa. The applicant did not seek his liberty through an application for habeus corpus. Nevertheless, the applicant's contention that the application was directed at his liberty is not without force. He sought release from allegedly oppressive conditions of detention at the Park Hotel which the medical evidence indicated was a material cause of his current mental health problems. He sought to be sent to a safe country overseas, and in the meantime be held in immigration detention at the residential home of a friend. In a real sense the application was directed at his liberty. 25 Third, the respondent referred to the purported "burden" on the Court of being required to state what its decision would have been. There is no such burden in the circumstances of the present case as the orders I proposed to make had been decided, but not published, when the application was discontinued. 26 The applicant should have his costs of the proceeding. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate: Dated: 22 March 2022