CZA19 v Commonwealth of Australia

1. The respondents are to pay the applicant's costs of the separate question, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 On 28 March 2024 the applicant commenced this proceeding against the Commonwealth of Australia and the Minister for Immigration, Citizenship and Multicultural Affairs seeking, among other things, an order in the nature of a writ of habeas corpus on the basis that his ongoing immigration detention was unlawful in light of the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 and, in the alternative, a writ of mandamus to compel the Minister to determine his visa application. On 3 April 2024 the Court made an order that the entitlement to that relief be heard separately and in advance of the other issues in the proceeding (separate question). The determination of the separate question was subsequently referred to a Full Court of this Court. 2 On 13 May 2024 the applicant was notified that: (1) the Minister's delegate had refused the application for a protection visa; (2) the applicant was to be released from immigration detention that day under the grant of a bridging visa; and (3) the bridging visa would be subject to conditions. 3 As a result the hearing of the separate question was vacated. The only remaining issue is that of costs. The applicant seeks his costs of the separate question while the respondents contend that those costs should be reserved pending resolution of the entire proceeding. 4 In summary, the respondents submit that the issue of whether the applicant's detention was lawfully authorised for the purpose of processing his protection visa application remains to be resolved as part of the applicant's extant claim for damages and the issue of costs should await a decision on that question. They also submit that while the application for mandamus became moot, the fact that the visa was refused does not mean that the Minister surrendered. 5 We are satisfied that the applicant should have his costs of the separate question, as agreed or taxed. That is because as the applicant submits: (1) he succeeded in obtaining the practical outcome he pursued by way of the separate question, namely release from immigration detention and a decision on his application for a protection visa. Had the applicant been denied his protection visa application and released prior to commencement of the proceeding or at least prior to further substantive steps having been taken, he would not have been required to advance a case seeking relief including mandamus to compel the executive to perform its duty; (2) contrary to the respondents' contention, there was no agreed fact that as at 1 May 2024 the applicant's protection visa application "was at the final stage of processing"; (3) even if that application was at the "final stage" by the time the parties finalised the statement of agreed facts, there is no evidence as to why the final stage took approximately five weeks to crystallise into a decision, no evidence of what occurred in the intervening period and no evidence of why the decision happened to coincide with the time at which the respondents' submissions were due to be filed. No notice was given to the applicant of an anticipated time frame for the decision either before or after commencement of the proceeding; (4) the circumstances of this case bear some similarity to those in Grant v Secretary Department of Home Affairs [2022] FCA 261 where, after a final hearing but before delivery of judgment, the applicant was granted a visa and the only question to be resolved was that of costs. Justice Murphy awarded costs to the applicant. His Honour did so for two reasons, the first of which concerned a finding (at [20]) that in that case "it [was] possible to say that the applicant would have been substantially successful, had he not been granted the visa". His Honour found that the case was plainly distinguishable from the decision in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622. Here, although there was no hearing and the respondents did not file their submissions, it is plain that the applicant would succeed at least in obtaining the relief he sought in para 2 of his originating application, a writ of mandamus directing the Minister to make a decision on his protection visa application. That the Minister, days before the hearing, accepted the inevitable state of affairs takes the case outside of cases such as Lai Qin; and (5) the second consideration in Grant was his Honour's view that although "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 application was "in a real sense" about his liberty. The same can be said here. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Mortimer and Justices Perram and Markovic.