These reasons relate to an application by the applicant ("Mr Falee") for costs in relation to the discontinuance of proceedings instituted by him on 5 December 2003 in this Court, seeking a declaration that he was unlawfully detained, together with a writ of or an order (in the nature) of habeus corpus directing the respondent ("the Minister") to cause him to be released from immigration detention forthwith.
Mr Falee was released from immigration detention on 31 August 2004. He now wishes to discontinue these proceedings in view of the decision of the High Court given on 6 August 2004 in Al-Kateb v Godwin (2004) 208 ALR 124, where the Court decided that ss 189, 196 and 198 of the Migration Act 1958 (Cth) ("the Act") required Mr Al-Kateb to be kept in immigration detention until removed from Australia. The Court considered that the wording of these provisions was unambiguous, and that they could not be read as subject to any purpose or limitation, such as that they should not affect fundamental human rights.
The background facts to the present case are that when the proceedings were instituted, Mr Falee had been in immigration detention for over two years, from 22 August 2001. He was eventually released, after being detained for just over three years, on 31 August 2004, when the Minister granted him a special purpose visa for the purpose of applying for a bridging visa class E subclass O5O, which the Minister subsequently granted to Mr Falee.
Mr Falee now submits that costs in the order of $117,000 should be awarded for a number of reasons.
First, the effect of the Minister granting him a special purpose visa on 31 August 2004 was that he was no longer classified as an "unlawful non-citizen" and so could not be detained by the Minister under ss 189 and 196 of the Act. It is said that in this way Mr Falee achieved in substance the practical relief he had sought, namely, his release. Mr Falee submits that the legal and factual foundation for the relief he had sought disappeared as a consequence of the action of the Minister. As a consequence he submits the Court does not now have any substantive issues to determine, as his application has been rendered moot by the action of the Minister, and so the Court is not in a position to determine the legality or otherwise of Mr Falee's three year detention, because he has now been released.
Second, it is said that at the time Mr Falee was released, the present proceedings were still on foot, it is submitted on behalf of Mr Falee that they had not determined by the High Court handing down its decision on 6 August 2004 in the Al Kateb case decision on 6 August 2004 in the Al Kateb case.
Third, it is said that the effect of the Minister issuing a s 48B notice inviting him to make a further application for a protection visa on 19 February 2004, which was the eve of the hearing of the application in the present proceedings, was that the proceedings were adjourned part-heard on 20 February 2004.
It is said for Mr Falee that the Minister does not have a duty to remove a non-citizen as soon as reasonably practicable in circumstances where a non-citizen has made another valid application for a substantive visa. No reason or explanation is given by the Minister for issuing the s 48B notice on the eve of the hearing. It is said therefore that it is reasonable to assume, given the timing of the notice, that the Minister wanted to prevent the Court from determining Mr Falee's application at the time, because the Minister believed there was a very real risk that Mr Falee would be successful in proving that there was no real likelihood that he could be removed from Australia to Iraq or Iran in the foreseeable future. Apart from the coincidence in timing there is no evidence to support this contention.
When the matter came on for hearing before me on 20 February 2004 the substantial issue between the parties was whether Mr Falee could establish that there was no reasonable likelihood that he would be removed from Australia to Iraq or Iran in the foreseeable future. The action of the Minister in issuing the s 48B notice led to the proceedings being adjourned part-heard on that day. On 24 February 2004, I made an order adjourning the proceedings for a further three months. Since that time there were no developments of a substantial nature in the proceedings, and there were further directions hearings in May and July of 2004. Further adjournments were granted to allow for the protection visa application process to be pursued and if necessary any application for review to the Refugee Review Tribunal.
As at the date of the hearing on 20 February 2004, Mr Falee had been detained for approximately two and a half years. He had made a written request to be removed from Australia on 4 July 2003, seven and a half months prior to the date o the hearing of his application. Prior to his request for removal he had written to approximately thirty-five different countries requesting refugee status. The embassies or consulates of ten countries had replied, and all in the negative. Despite the fact that the application was adjourned part-heard on 20 February 2004, and the merits of the application were not determined by this Court, it is undeniable that there was a real risk that the Minister would not be able to prove that that there was a real likelihood or prospect that Mr Falee would be removed to Iraq or Iran.
The Minister, in submissions as to the principles which should be applied in respect of costs in circumstances where proceedings have been discontinued, has referred to the judgment of McHugh J in Re Minister for Immigration and Ethnic Affairs and Anor; Ex parte Lai Qin (1997) 186 CLR 622, where his Honour said at 624-625.
"In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff has no reasonable alternative but to commence a litigation.
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Moreover, 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.
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If 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 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. This approach has been adopted in a large number of cases."
In this case the Minister does not contend that Mr Falee acted unreasonably in commencing and prosecuting the proceedings up until the time of delivery of the judgment in Al-Kateb. The submission is that while the application was foredoomed to fail it was not unreasonable for Mr Falee to have commenced the proceedings in reliance on the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54. However, the Minister places considerable emphasis on the fact that the application was bound to fail in the light of the later decision of the High Court in Al-Kateb. It is said that this provides an additional powerful reason why no costs order should be made against the Minister.
Both counsel have referred to the reasons for judgment of Moore J in Al-Jashamy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1008. That case is not on an exact par with the present, but it does provide some guidance. His Honour in that case ordered the Minister to pay the applicant half his costs as taxed or agreed in circumstances where proceedings had been discontinued. His Honour pointed out at [7] that:
"My impression at various points during the hearing … was that the applicant had a case of real substance even though at no stage was I left with the impression that the case was unassailable. Certainly the applicant did not act unreasonably in making the application, but the Minister did not act unreasonably in defending it. … It is probably inappropriate to say that the grant of the visa by the Minister was a 'surrender' … Nonetheless, in practical effect, it provided the applicant with the relief he sought. On the other hand, it is probably desirable that the Minister should not be deterred from granting such a visa in broadly analogous cases by then being ordered to pay the entire costs of applicants in proceedings such as the present."
In the present case, my view is that if the Minister had not acted on the evening before the hearing on 20 February to issue the s 48B notice, there was a strongly arguable case that there was no real likelihood, when regard is paid to the history of the matter, that Mr Falee would or could have been removed from Australia to Iraq or Iran in what was then the foreseeable future. Accordingly, he would have had reasonable prospects of meeting the criteria for an application of habeus corpus that derives from Al Masri.
In these circumstances, and notwithstanding the effect of the subsequent majority decision of the High Court in Al-Kateb, I am persuaded that in this case the Minister should be ordered to pay fifty percent of Mr Falee's costs of the substantive proceeding and of this application for costs arising from the discontinuance.
Since these proceedings can only be discontinued with the consent of the respondent or the leave of the Court, I grant leave to the applicant to file a notice of discontinuance.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.
[2]
Solicitor for the Applicant: Henry David York
[3]
Solicitor for the Respondent: Australian Government Solicitor
[4]
Date of Judgment: 20 December 2004
Parties
Applicant/Plaintiff:
Falee
Respondent/Defendant:
Minister for Immigration and Multicultural and Indigenous Affairs