The applicant, Mostafa Azimitabar, is a 37-year-old citizen of Iran of Kurdish ethnicity who came to Australia, by boat, without a visa, arriving at Christmas Island in July 2013. He was detained initially on Christmas Island and in mid-August 2013 taken to Manus Island Regional Processing Centre in Papua New Guinea (PNG). In 2017, the PNG Ministry of Foreign Affairs and Immigration determined that he was owed protection obligations under the international Refugees Convention as a Kurdish-Iranian asylum seeker. In August 2019, having been detained in Manus Island for six years at that point, he was assessed by a psychiatrist as suffering from post-traumatic stress disorder (PTSD) and a major depressive episode. He applied to be transferred to Australia under the medical transfer provisions of the Act which were then in force, and on 11 November 2019 he was transferred to Australia for the purpose of receiving psychiatric assessment and treatment.
[2]
Following his arrival in Australia for such treatment, the applicant was detained for more than 14-months, from 11 November 2019 to 21 January 2021, first in the Mantra Bell City Hotel in Preston (Mantra Hotel), and then in the Park Hotel in Carlton (Park Hotel) (the Hotels). On 21 January 2021 the applicant was granted a bridging visa and was released from immigration detention into the community. Since then the applicant's bridging visa has been extended and he has continued to live in the community.
[3]
The applicant contends that his detention in the Hotels was unlawful and claims damages in that regard. Broadly, he advances three arguments, which may be summarised as follows.
(a) First, the applicant contends that neither subpara (b)(v) of the definition of "immigration detention" in s 5(1) of the Migration Act 1958 (Cth) (the Act), nor anything else in the Act, confers a power on the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to approve 'another place' in writing as a place of immigration detention. On his argument, any purported approval of the Hotels as places of immigration detention therefore had no effect; the Commonwealth detained him other than in "immigration detention", as defined in the Act, which it had no authority to do, and his detention was therefore unlawful (the No Power to Approve 'Another Place' of Immigration Detention Contention).
(b) Second, in the alternative, the applicant contends that the conditions of his detention in both Hotels meant they were de facto "detention centres", and the power to establish a "detention centre" is only found in s 273 of the Act. He argues that on the principle of statutory construction usually associated with Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 any power sourced in subpara (b)(v) of the definition of "immigration detention" cannot be used to establish a de facto detention centre. Again, on his argument the Commonwealth detained him other than in "immigration detention" which it had no authority to do, and his detention was therefore unlawful (the No Power to Approve a De Facto Detention Centre Contention).
(c) Third, the applicant contends that the Act does not authorise the Commonwealth to contract and spend public monies on creating and operating the Hotels as places of immigration detention; neither does the executive power under 61 of the Constitution, and nor does s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth) and the regulations made thereunder. On his argument, the Commonwealth detained him in the Hotels despite it not having authority to contract and spend public monies to create and operate the Hotels as places of immigration detention, and his detention in the Hotels was therefore unlawful (the Unlawful Expenditure Contention).
4 For the reasons I now turn to explain I do not consider the applicant's detention in the Hotels to have been unlawful, and his application must therefore be dismissed. First, I consider subpara (b)(v) of the definition of "immigration detention" impliedly confers power on the Minister to approve 'another place' in writing as a place of immigration detention, and I am satisfied the Hotels were so approved. Second, although the Hotels did in my view operate as de facto detention centres, I consider the power in subpara (b)(v) is not impliedly limited by the Anthony Hordern principle or otherwise such that it does not include a power to approve 'another place' of immigration detention that is, in effect, a detention centre. Third, I consider the lawfulness of the applicant's detention in the Hotels does not depend on whether or not the Commonwealth's contracting and expenditure on the Hotels as places of immigration detention was lawfully authorised. In any event, I consider the executive power under s 61 of the Constitution authorised the Commonwealth's contracting and expenditure on the Hotels.
While I concluded that the applicant's detention in the Hotels was not unlawful, I expressed real disquiet about the manner of his detention, as follows (at J [5]):
That should not, however, be understood as my approving the immigration detention the applicant was required to endure. I can only wonder at the lack of thought, indeed lack of care and humanity, in detaining a person with serious psychiatric and psychological problems in the Hotels for 14-months, primarily in a hotel room with a window that would only open 10cm, and for most of the time without access to an outdoor area to breathe fresh air or feel the sun on his face. For most of the time he was held in the Mantra Hotel he was restricted to his room, to the third floor of the hotel, and to the basement area when having meals. Anyone who endured even two weeks of hotel quarantine during the COVID-19 pandemic would surely understand how difficult that must have been. As a matter of ordinary human decency the applicant should not have been detained for such a period in those conditions, particularly when he was suffering from PTSD and a major depressive episode. But the decision in this case does not turn on the humanity of the applicant's detention; it is about whether the Minister had power under the Act to approve the Hotels as places of immigration detention, and therefore to detain the applicant as he was. I consider the Minister had (and has) power to do so.
principles
Pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) the Court has a broad discretion in respect of costs, which must be exercised judiciously and according to principle: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [34]-[35] (Gaudron and Gummow JJ). Those principles are not to be elevated to the status of rules: Oshlack at [35] citing Norbis v Norbis [1986] HCA 17; 161 CLR 513 at 537 (Brennan J).
It is established that the usual order in a civil case like the present is for costs to follow the event. In the ordinary course, the successful party is entitled to be compensated by an order for costs against the unsuccessful party. The High Court has described this compensatory principle as "one of the most, if not the most, important principle[s]" guiding the exercise of the discretion: Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 at [25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); Oshlack at [67] (McHugh J, Brennan CJ agreeing).
Departure from the usual rule may be justified where litigation is in the public interest: Oshlack at [49], [134], [136] and [143]. There is no set test or exhaustive set of considerations that govern where an unsuccessful applicant may avoid a costs order in pursuit of "public interest" litigation, though the question has been addressed in a number of decisions of the High Court and this Court. Mortimer J (as her Honour then was) listed some of the main authorities in DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793 at [22], as follows:
There are now a large number of authorities concerning the circumstances in which a court might exercise its discretion as to costs and to make no order as to costs, because of the nature of the proceeding, in the sense that it raises a matter of public importance, or a matter of public interest. Without being exhaustive, a recitation of those authorities usually commences with the High Court's decision in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 and from there I also include in the list a number of decisions of this Court, such as Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; 165 FCR 211; Wilderness Society Inc v Turnbull, Minister for Environment and Water Resources [2007] FCA 1863; Save the Ridge Inc v Commonwealth [2006] FCAFC 51; 230 ALR 411; Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229; Animals Angels' eV v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84; 280 ALR 91; Minister for Immigration and Border Protection v CQZ15 (No 2) [2018] FCAFC 19 and B9/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27.
The parties' submissions
The applicant's submissions
The applicant submits that the appropriate order in the present case is that each party should bear their own costs, and thus there should be no order as to costs. The applicant relies on Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; 173 LGERA 280 at [60], where Preston CJ set out a number of matters that may tend in favour of departure from the usual order as to costs, relevantly including that the proceeding:
raises one or more novel issues of general importance;
has contributed, in a material way, to the proper understanding, development or administration of the law; or
affects a significant section of the public.
The applicant contends that in the circumstances of the present case the Court should depart from the usual order as to costs because:
the central issue in the proceeding - whether the definition of "immigration detention" in section 5 of the Migration Act 1958 (Cth) (the Act) implies a power for the Minister to nominate "another place of detention" (APOD) - had not been decided as part of the ratio of any earlier case (J [109]), such that the proceeding raised a novel and important point of law;
the applicant's argument was not abstruse or far-fetched and resolution of the central issue in the proceeding has contributed in a material way to the proper understanding of the Act, including through the respondent's acceptance that there is no express power in the Act to nominate APODs (J [77]), and of the need to imply a power where ordinarily they are not found in a statutory definition (J [80]);
the outcome of the case affects a significant section of the public. The APOD network includes the "ITAs" - e.g., Brisbane Immigration Transit Accommodation, as well as scores (at times, more than 100) of other "as needs" locations (J [33]). The evidence in this case, and this Court's jurisprudence more generally, shows that (at least) hundreds of people are in APODs at any time, which likely means many thousands, collectively, over time. It is in their interests to understand the basis upon which they are being detained where they are. Identification of the power:
makes easier the identification of its limits, and challenges to excesses thereof;
enables the legislature to consider whether the Executive should be permitted to continue setting up de facto detention centres (J [193]) using an implied power found in a definition section; and
enables the public to debate whether the scheme identified by the Court's construction - creating de facto detention centres using an implied power found in a definition section - is conducive to proper oversight of the use of that power;
that there was widespread public interest in the proceeding, although accepting that this does not in itself demonstrate that the proceeding is a "public interest" proceeding;
although on the Court's construction the applicant's detention was not unlawful, it was nevertheless uncaring and inhumane (J [5]); and
The respondent's submissions
The respondent submits that, as a threshold point, the applicant must establish that the litigation should be characterised as "in the public interest". In addition it says that there must be "something more" than that before a departure from the usual costs rule would be justified, citing Oshlack at [49]; Animals Angels' eV v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35 at [130]; Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at [19].
The respondent argues that the applicant's case was not brought in the public interest because:
the litigation was not brought in the protection of, or the vindication of, any public right or interest. It did not, for example, concern a legislative scheme for the benefit of the public generally, such as environmental legislation. Instead the applicant pursued a private right and sought damages for alleged false imprisonment which, if successful, would have resulted in personal or financial gain. He did not seek declaratory relief for example;
whilst the case "touched" a matter of public interest so far as it concerned the applicant's liberty, there are a number of cases that show this to be insufficient to warrant departure from the general rule, citing Commonwealth v AJL20 [2021] HCA 21; 273 CLR 43; Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 261 CLR 582; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514;
it is not sufficient simply that the applicant sought to challenge a provision with potentially wide implications. That is true of many actions, especially in public law. That the litigation expressly answered a particular question for the first time, or that the outcome of the litigation might have impacted other individuals, does not make it public interest litigation; and
the media attention the case attracted is not relevant to the question of public interest. That question "is not [to be] determined by the degree of interest in it shown by members of the public, but rather objectively by the extent to which it serves the public interest", citing Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; 216 LGERA 201 at [39].
It contends that even if the matter can be characterised as "in the public interest", there is nothing additional that would justify a departure from the usual order as to costs, because:
the question of the power to determine places as APODs was not novel, noting the remarks at J [108] that "numerous judicial statements either refer to a 'power' in subpara (b)(v) of the definition of 'immigration detention' or treat subpara (b)(v) as if it confers power";
the resolution of this point did not materially contribute to an understanding of, or clarify the operation of, the Act because the power to determine APODs had been assumed without concern. The primary judgment confirmed the plain meaning of the Act; and
the applicant's challenge would not have had broader impacts or have affected the broader public because, even if the Court accepted that the Minister's power was limited to the approval of places which are not de facto detention centres, it would not have followed that all other APODs and types of detention were unlawful. The legality of each APOD would be determined in potential future litigation, turning upon the characteristics of the relevant place.
Consideration
I am persuaded that the proceeding can properly be described as "being in the public interest" and that it is appropriate to depart from the usual order that the successful respondent be entitled to its cost, and instead order that there be no order as to costs.
A departure from the usual order as to costs may be justified in proceedings that have been brought in the public interest. In my view this is such a proceeding. As Marshall J observed in The Wilderness Society Inc v The Hon Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863 at [30]:
Each case must turn on its facts and the relevant considerations through which it may be found appropriate to depart from the usual order are not closed. The real issue is not what is considered to be in the public interest or whether public interest considerations are a recognised exception to the usual rule, but rather, whether it can be said that there are sufficient public interest related reasons connected with or leading up to the litigation that warrant a departure from or outweigh the important consideration that a wholly successful respondent would ordinarily be awarded its costs.
First, the respondent's argument that the proceeding was not "brought in the public interest" because, for example, it did not concern a legislative scheme for the benefit of the public generally, such as environmental legislation has no force. Nor is there any force in its contention that the case merely "touched" on a matter of public interest insofar as it concerned the applicant's liberty.
The proceeding concerned the applicant's executive detention by the Commonwealth. It challenged the legality of that detention by arguing that the Commonwealth had no power to detain the applicant in a hotel that had been declared by the Minister to be "another place of detention", in circumstances where the Act does not contain an express power to detain a person in such a place. I consider the proceeding plainly concerned the public interest as it not only concerned "one of the foundational rights recognised by the common law - of liberty", but also "the lawful scope of executive detention, as authorised by statute, in Australia [which is] plainly also a matter of considerable public importance": see DBE17 at [23(a)]).
Second, and relatedly, as Mortimer J observed in DBE17 at [23(b)], "[a]wards of costs are capable of having a chilling effect. In my view there should be no chilling effect on responsibly conducted and arguable proceedings" concerned with "the exercise of public power, so as to deprive individuals of their liberty". This proceeding was responsibly conducted and raised some arguable claims as to the lawful exercise of the power to detain the applicant in "another place of detention".
Third, I accept the applicant's contention that the case raised a novel point of law. The central issue in the proceeding - whether the definition of "immigration detention" in the definitions section of the Act is a source of power to detain a person in a place designated in writing by the Minister as "another place of detention" - had not been decided as part of the ratio of any earlier case (J [109]).
Conclusion
Having regard to those matters I am satisfied that it is appropriate that there be no order as to costs in the application.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy.
that the proceeding challenged the lawful scope of executive detention which is a matter of considerable public importance, and that proceedings about the use of public power to deprive people of their liberty, if arguable and responsibly conducted, should not be chilled by costs orders.
The Commonwealth now submits that the Court's construction merely confirms the plain meaning of the Act, but that was not as easily established as the respondent now argues. While the Minister had the authority under s 273 of the Act to establish and maintain a "detention centre", neither of the Hotels were, in fact, established or maintained under that provision or under subpara (b)(i) of the definition of "immigration detention".
Indeed there is no substantive provision in the Act which expressly empowered the Minister to approve the Hotels in writing as a place of immigration detention, as the Hotels were not either:
a "detention centre" under s 273 of the Act, or within subpara (b)(i) of the definition of "immigration detention";
a prison or remand centre of the Commonwealth, a State or a Territory (and therefore did not fall within subpara (b)(ii) of the definition);
a police station or watch house (and therefore did not fall within subpara (b)(iii) of the definition); or
a vessel (and therefore did not fall within subpara (b)(iv) of the definition).
The applicant could only have been lawfully detained in "immigration detention" during the relevant period if the Hotels were "another place approved by the Minister in writing" under subpara (b)(v) of the definition of "immigration detention".
The applicant's central claim, that the definition of "immigration detention" could not be the source of power for the Minister to detain a person in "another place of detention" found support in well-established principles of statutory construction. As the Full Court in Azimitabar noted (at [38]):
The appellant relies upon two well-established principles of statutory construction to first submit that '[it] is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is the wrong thing to do': Thompson v Goold & Company [1910] AC 409 at 420. Second, the appellant submits that definitions are aids to construction, and do not operate in any other way, absent 'clear contrary legislative intent', citing [Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; HCA 74 at 635 (Barwick CJ, McTiernan and Taylor JJ)] and Morton Bay Regional Council v Mekpine Pty Ltd (2016) 256 CLR 437 at [62] (French CJ, Kiefel, Bell and Nettle JJ).
Earlier judicial statements that referred to or treated the definition of "immigration detention" in the definitions section of the Act as conferring a power to designate "another place of detention" were "far from determinative", and did not provide a reasoned basis for that construction, nor was it part of the ratio of those cases: J [108]-[109]. The proper construction of the Act was the subject of a two-day hearing and detailed reasons. While I did not accept the applicant's arguments, they were not spurious or fanciful, and they were entitled to serious consideration by the Court: see DBE17 at [25].
Fourth, the respondent contends that prior to the proceeding the Minister assumed that the definition of "immigration detention" provided power to designate a place as "another place of detention", and thus the operation of the Act was unchanged by the proceeding. There is, however, no direct evidence as to the Minister's understanding prior to the proceeding, including as to whether the Minister or those who advise him had noticed the absence of an express power. Whatever the Minister's view, following dismissal of the proceeding and the appeal, the law has been clarified which is to the benefit of the parties, other immigration detainees held in "another place of detention" and to the process of executive detention more generally. There is a public interest in ensuring that the provisions are properly understood and observed by the relevant decision-makers: Minister for Immigration and Border Protection v CQZ15 (No 2) [2018] FCAFC 19; 259 FCR 569 at [23] (Kenny, Tracey and Griffiths JJ).
Fifth, it is true that the proceeding brought a private claim for damages for unlawful imprisonment, and thus the applicant would benefit financially if he was successful in the case. However, that benefit would only accrue to the applicant if the Court found that public power had been unlawfully exercised and the applicant's liberty had been unlawfully infringed. In those circumstances that "is not a feature of sufficient weight to govern the manner in which the costs power should be exercised": DBE17 at [23(c)]. Further, as noted in DBE17 at [23(d)], the individuals in Ruddock v Vadarlis also sought relief which would have benefitted them, and that did not prevent the Full Court from deciding not to award costs in that proceeding.
Sixth, unlike DBE17 this is not a representative proceeding but the proceeding has significance for other persons detained in places designated as "alternative places of detention". The evidence shows that, at any given time, there may be more than 100 approved APODs around Australia, involving hundreds if not thousands of people over time (and certainly into the future). I concluded that to detain the applicant in the manner that he was, while not unlawful, was nevertheless uncaring and inhumane (J [5]). There was widespread public interest in the proceeding and in a real sense, the applicant's case was a test case for persons detained in such conditions. Had the proceeding been successful I have little doubt that other persons detained in hotels designated as "alternative places of detention" would have brought similar claims so as to get out of such forms of detention. The proceeding was of real significance to a disadvantaged section of the public.