GPBL v Commonwealth of Australia

Outcome 5 For the following reasons, there should be an order that the Respondents pay the applicant's costs up until the date the visa was granted. The order should not be made on an indemnity basis. There should be no order concerning set-off.

Relevant principles 6 The award of costs is discretionary: s 43 of the Federal Court of Australia Act 1976 (Cth). The discretion is to be exercised judicially, guided by established principle: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [34]-[35]. Those principles are not to be elevated to rules: Norbis v Norbis (1986) 161 CLR 513. 7 Generally speaking, the discretion is exercised by reference to an outcome, that is to say a determination by the Court as to the merits of the competing positions of the parties. However, on occasion, for various different reasons, the Court may be asked to make an order for costs in circumstances where there has been, and will not be, an adjudication of the merits. One such circumstance is where the need for an adjudication by the Court has been overtaken by events. Another is where one party concedes or submits to orders. In such cases, the Court does not undertake a determination of the substantive issue for the purpose of adjudicating an application for a costs order. Rather, the following principles pertain, as explained by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, namely: (1) in most cases, 'it is not the function of a court on a costs application … to make a prediction as to the outcome of a hypothetical case'; (2) if both parties have acted reasonably in pursuing and defending the application then it will usually be appropriate for there to be no order as to costs; (3) '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'; (4) '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'; and (5) where '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'. 8 Lai Qin itself was an instance where the costs of bringing an application were sought by an applicant in circumstances where it was claimed that the Minister had acted unreasonably. The unreasonableness was said to be the failure by the Minister to inform the applicant that the Minister was giving consideration to the grant of a visa to the applicant. Significantly for present purposes, the applicant in that case sought the review of a tribunal decision to affirm the Minister's decision to refuse to grant a protection visa to the applicant. Therefore, the grant of a visa was not part of the relief sought. Rather, if the proceedings had been successful, the matter would have been remitted to the tribunal for determination according to law. Nevertheless, a few days before the commencement of the application, the process to put before the Minister a recommendation that the applicant be granted a visa by ministerial intervention had been commenced. Shortly thereafter, a decision was made to grant a visa and, in consequence, there was no longer any practical relevance to the application. The issue was whether it was unreasonable (for the purposes of exercising the costs discretion) for the legal advisers to the Minister not to inform the applicant that the application for a visa might be reconsidered by the Minister when they were aware that proceedings were contemplated. It was found that there had been no unreasonableness in the conduct. 9 Therefore, Lai Qin was a case where the need to determine whether the relief sought should be granted was overtaken by events. It was not a case where the respondent took action of the very kind that the applicant was seeking to have the Court require the respondent to take and did so soon after proceedings were commenced. 10 Different issues arise where, as here, the reason that there is no determination of the outcome is because that which is sought by the commencement of the proceedings has occurred at the instigation, or by the acts, of the respondent party and in that sense the applicant has succeeded. That will be especially so where the Court is satisfied that the respondent has surrendered or capitulated: see the helpful analysis of the authorities by Halley J in FCA US LLC v Mahindra Automotive Australia Pty Ltd [2021] FCA 1091 at [33]-[35]. As his Honour there explained: 'it is necessary to have regard to the conduct of the parties not to determine whether a party has acted in a manner that can objectively be characterised as unreasonable, but rather to determine whether by their respective conduct one party has, in substance, capitulated or surrendered to the other party'. 11 As to applications for an order for costs to be made on an indemnity basis, I dealt with the principles to be applied in Sharif v Vitruvian Investments Pty Ltd (No 5) [2024] FCA 134 at [24]-[31]. They require the existence of some special or unusual feature in the conduct of a party that means it is appropriate for the Court to mark its disapproval of the conduct by allowing the other party a full indemnity for all costs reasonably incurred. It includes instances where unreasonable conduct on the part of a respondent has been the reason why a party has been forced to resort to legal proceedings.

The present circumstances 12 In the present case, the applicant was refused a protection visa by a delegate of the Minister for Home Affairs. He was found by the delegate to be a person who met relevant criteria specified in the Migration Act 1958 (Cth) to qualify for protection as a refugee, but his application was refused on the basis of the delegate's views that (a) having been convicted of a dangerous crime he was considered on reasonable grounds to be a danger to the Australian community (and therefore did not satisfy the criterion in s 36(1C)(b) that he not be such a person); and (b) he was also ineligible for the grant of a protection visa because there were serious reasons for considering that he had committed a serious non-political crime before entering Australia (as provided for by s 36(2C)(a)(ii)). 13 In cases where a decision is made by a ministerial delegate refusing an application for a protection visa, Parliament has provided for a right to seek review in the Administrative Appeals Tribunal. The availability of that right to seek an independent merits review before a member of a tribunal is an important protection. 14 The applicant sought review of the delegate's decision in the Tribunal. 15 Upon an application for review, the Tribunal is obliged to undertake a rehearing and makes its own decision 'standing in the shoes' of the original decision-maker. The Tribunal has power to set aside the decision of a delegate and to remit the matter for reconsideration in accordance with directions as to matters that it has found. It must only do so after a hearing. It must provide reasons for its decision. If requested to provide those reasons in writing it must provide the reasons which shall include its findings on material questions of fact as well as references to the evidence or other material on which those findings were based. 16 Upon reconsideration of a matter remitted by the Tribunal, the decision-maker must give effect to any direction made by the Tribunal. 17 In the present case, the Tribunal concluded that the applicant was not a danger to the Australian community and made the following decision: The Tribunal sets aside the reviewable decision dated 2 March 2023 and remits the matter to the Respondent for reconsideration in accordance with the following directions: 1. The Applicant satisfies the criterion in section 36(1C)(b) of the Migration Act 1958 (Cth) ('the Act'). 2. Section 36(2C)(b)(ii) of the Act is not engaged by the Applicant. (original emphasis) 18 The directions made by the Tribunal are significant because they curtail what might be done on remitter. 19 The Tribunal's decision was made on 11 October 2023 and its reasons were published on 14 November 2023. By reason of the directions made by the Tribunal, the original reasons why the delegate had refused the grant of the protection visa could not justify refusal on the remitter. Those were very significant developments. They substantially curtailed what was to be done by way of reconsideration. They meant that the protection visa could not be refused on the same statutory basis that is was previously refused. 20 It may be accepted that, despite the directions made by the Tribunal, there were statutory provisions other than those the subject of the directions made by the Tribunal that might be considered by the Minister as part of the reconsideration, most notably the matters arising under s 501 of the Migration Act. Nevertheless, the matters to be considered had been curtailed significantly. Yet, by March 2024, no decision had been made on the remitter. 21 On 5 March 2024, the applicant made a written request that he be released to any safe country or released back into the community. In the request he said: 'If I am not released in 7 day[s] I will Habeas Corpus'. 22 Then, by proceedings brought in this Court on 19 March 2024, the applicant sought a writ of habeas corpus alternatively a writ of mandamus requiring the Minister to consider and determine his visa application or remove him to a country other than Iran. An urgent hearing was convened the following day and Perram J ordered that the Respondents file any evidence by 6.00 pm the next day and that the application be heard on 22 March 2024. 23 On 21 March 2024 the applicant filed and served a notice of a constitutional issue. Broadly speaking, the notice raised an issue to the effect that a party with a pending application for a visa in respect of whom there was no real prospect of their removal from Australia becoming practicable in the reasonably foreseeable future was also within the temporal limitation imposed by Chapter III of the Constitution as referred to in ASF17 v Commonwealth [2024] HCA 19 at [1], following the reasoning in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37. In consequence, so it was claimed, the ongoing detention of the applicant exceeded the constitutional limitation relating to detention. 24 Not long after 4.00 pm on 21 March 2024 (that is, the afternoon before the scheduled hearing to take place on an urgent basis before Perram J), an email was received by the applicant's solicitor from the solicitors for the Respondents. It said they had been instructed that at around 4.00 pm a decision was made to grant the applicant a protection visa and that they 'understand that your client's release is being progressed'. It expressed the view that relief in the nature of habeas corpus and a writ of mandamus was no longer necessary. The letter attached a document recording the grant of the protection visa on 21 March 2024. 25 The applicant's solicitors proposed an order for costs up to and including 21 March 2024 to be taxed in default of agreement and made an offer to agree to a reduction of 10% on the costs to prevent unnecessary cost and expense. 26 The Respondents rejected the applicant's proposal as to costs.

The parties' principal contentions on the interlocutory application 27 The applicant claimed that the costs of the proceedings up until 21 March 2024 should be ordered in his favour because the claim concerned his liberty and he was substantially successful in securing his liberty by reason of the Minister considering and granting his visa application within 72 hours of the proceedings being commenced (and otherwise after a period of delay which was claimed to be long and unexplained). The applicant resisted any suggestion that the timing of the grant of the visa application had not been affected by the bringing of the proceedings in this Court. Rather, the applicant claimed that the Minister, by the actions taken after the proceedings were commenced, capitulated when it came to the mandamus relief, thereby rendering the claim for habeas corpus nugatory in circumstances where he was granted a protection visa. It was said that the Minister thereby had conceded the merits of the applicant's claim. 28 There was a further submission, based upon evidence by the applicant to the effect that he was invited by an agent of the Minister to commence proceedings because that would be faster than waiting for a decision on his protection visa application. However, that evidence was disputed and it is not a matter on which I would be prepared to make findings for the purposes of dealing with the costs application. 29 The applicant advanced a further submission to the effect that the Court may infer that the applicant would have succeeded in obtaining habeas corpus relief based upon the constitutional argument that the applicant had raised. I did not allow the applicant to develop that submission. It invited the Court to reach a conclusion on a claim that raised significant issues. They are before this Court in other proceedings which are being case managed to early determination: BOE21 v Commonwealth of Australia [2024] FCA 709. There is the prospect of proceedings being removed into the High Court. It would be contrary to the principles that I have outlined to undertake a consideration of an issue of that kind for the purpose of determining liability for costs. Further, I did not accept that the point was one in respect of which it may be concluded with the requisite degree of confidence that success by the applicant was inevitable. 30 For the Respondents, it was submitted that it could not be said that the applicant would have inevitably succeeded in his case for mandamus. It was submitted that it was clearly arguable that there had not been unreasonable delay by the Minister. Reliance was placed upon affidavit evidence for the Minister as to the steps that were taken after the decision by the Tribunal in relation to the application for a protection visa. On that basis it was submitted that what had occurred was that the need for the application had been overtaken by the event of the determination of the protection visa which, so the Respondents submitted, did not involve any capitulation or acceptance of the merits of the case advanced by the applicant. 31 As has been noted, if a costs order was to be made in his favour, the applicant sought costs on an indemnity basis. The contention advanced in that regard was that the conduct by the Respondents meant that the applicant had been forced to bring proceedings that were unnecessary. That is to say, it relied upon a claim that the Minister had no real answer to the claim. As has been explained, I would not reach that conclusion in relation to the habeas corpus claim. As to the mandamus claim, the relevant events are addressed below.

Exercise of discretion in the present case 32 Significantly, the affidavit evidence relied upon by the Minister simply recounted the sequence of events after the Tribunal made its decision. It provided no explanation as to why those steps were taken in this particular case. Rather, it set out what it described to be the steps generally taken when an application for a protection visa was remitted by the Tribunal. The problem with that approach was that the present case was no ordinary case of remitter by reason of the directions made by the Tribunal. 33 The deponent began by describing (on the basis of information and belief) the steps 'generally taken' by the Minister's Department when protection visa applications are remitted by the Tribunal. Significantly, that general description did not refer to a case, like that of the applicant, where there had been a remitter with directions that the requirements under both s 36(1C)(b) and s 36(2C)(b)(ii) of the Migration Act had been met. It referred to four steps as being generally taken upon remitter, namely: (1) update record keeping systems; (2) allocation to a protection obligation decision maker for consideration, noting: 'If the Tribunal remits an application with a direction that the applicant meets the criteria under s 36(2) of the Act, [a decision maker] would need to determine whether the applicant satisfies the criteria under ss 36(1C) and 36(2C) of the Act'; (3) 'if the [decision maker] finds that the applicant does satisfy the criteria in ss 36(1C) and 36(2C), the case is referred to [a different section] to conduct checks … in relation to health, character and security requirements'; and (4) 'if an assessment is made that an applicant might not meet the character requirements, the matter will be referred to [a different unit] for assessment against section 501 of the Migration Act …'. 34 Significantly, the description by the deponent of events that followed the remitter by the Tribunal, indicates that the above sequence was followed in relation to the applicant. That is to say, there was no allowance for the fact that the directions had been made or that the checks in relation to health, character and security had been previously undertaken and therefore need only be updated. There was certainly no suggestion in the affidavit to that effect. Rather, the steps as described in the affidavit appear to correspond with the four steps 'generally taken' as described at the beginning of the affidavit. 35 Further, the matters deposed show: (1) The protection visa application was remitted on 11 October 2023. (2) The written reasons of the Tribunal were provided to the legal representatives of the Minister on 16 November 2023. (3) Until 23 November 2023 the decision was reviewed to determine whether an application for judicial review would be lodged. (4) Between 28 November 2023 and 11 December 2023 staff involved were on leave and the Department 'was facing general operational pressures relating to resourcing and managing a large case load'. (5) It was not until 14 December 2023 (some two months after the Tribunal's decision) that a record was made for the purposes of advancing the consideration of the remitted application. (6) On 19 December 2023 a national criminal history check was requested (noting that checks of that kind had been undertaken previously and the directions that had been made by the Tribunal were to the effect that the criteria concerned with whether the applicant was a danger to the community were satisfied in favour of the applicant). (7) On 16 and 17 January 2024 an officer of the Department sought further information in relation to the offending. There is no explanation as to why that information was being sought having regard to the directions by the Tribunal. (8) Although the applicant raised in mid-December 2023 the question whether health checks were required, it was not until 17 January 2024 that the process for undertaking health checks was commenced. (9) On 1 March 2024 a request was made by the applicant's representatives for the application to be expedited. (10) The application was referred for assessment against s 501 of the Migration Act on 12 March 2024 as an urgent request (noting that it appears that documents to enable that referral, particularly the applicant's immigration detention records do not appear to have been requested before 14 February 2024). (11) It was not until 20 March 2024 that preparation of a 'VAPA' commenced (as to which, see below). (12) The next day, on 21 March 2024 the delegate from the relevant unit in the Department 'decided that formal consideration under s 501 by the Minister or delegate was not warranted'. (13) No explanation was then given (nor has since been given) by the Minister or the Commonwealth for that timing. That is to say, it has not been explained why the decision to grant the protection visa came to be made on the evening before the hearing of the application. 36 As to what is meant by a VAPA, the deponent said, on information and belief, that the following processes generally occur when a matter is referred to the unit in the Department for assessment against s 501 of the Migration Act: a referral [to the unit] is received by the Decision Support Unit (DSU), who determine whether the case will be taken down a Visa Applicant Primary Assessment (VAPA) or Notice of Intention to Consider Refusal (NOICR) pathway. A VAPA pathway is where on assessment of the existing information, DSU consider that the merits of a case may not warrant a full consideration eg where an applicant's circumstances are unlikely to result in a refusal; if a referral is on a VAPA pathway, the DSU officer will create the VAPA for consideration by the character delegate. The character delegate may either agree that a full consideration is not warranted, disagree and request a NOICR, or request additional information/escalation; if the character delegate agrees a full consideration is not warranted, the DSU officer who created the VAPA will then finalise the case, issuing a formal decision letter to the applicant, and in the case of a visa grant, warning them that future adverse conduct could lead to cancellation. (paragraph numbering omitted) 37 So, it was not until the creation of the VAPA that the task of considering whether there might be a refusal of the application for a protection visa under s 501 of the Act was undertaken. When the application finally came to be referred for consideration, a VAPA was prepared the day after proceedings were commenced and the protection visa was granted the next day. 38 There is no evidence from the Minister to suggest that in order to consider the grant of the protection visa (on the basis that formal consideration under s 501 was not warranted) it was necessary to follow the long course of events that was set in train before the proceedings were commenced. That is to say, there is no evidence to the effect that the steps that were undertaken were necessary in order for the delegate to consider and decide that formal consideration under s 501 was not warranted. Rather, the evidence filed by the Minister is to the effect that the steps that were taken were no different to those which might be taken when the matter was remitted for determination without any directions by the Tribunal. Nor is there any evidence to suggest that, in the ordinary course, the time from preparation of a VAPA to the making of a decision would be one working day. 39 Having regard to the timing of events, I do not accept that the grant of the protection visa was an intervening event that was the culmination of the ordinary course of events by following steps that had to be undertaken after the decision by the Tribunal. Rather, I conclude that upon commencement of proceedings urgent steps were taken to prepare a VAPA and that resulted in the determination of the protection visa application within a day. The taking of those steps involved a concession by the Minister that, by the time of the proceedings, the applicant was likely to be entitled to mandamus. 40 Therefore, it is not necessary to evaluate whether the conduct of the Minister up until the grant of the protection visa was unreasonable. It is sufficient to conclude that, on the evidence, by the time the proceedings were brought the Minister took urgent steps which are to be explained by a recognition that, in all likelihood, the applicant would succeed in his claim to a writ of mandamus. The Minister capitulated rather than advance a case in answer to the mandamus claim which, on the available material, it can be said, at least, would have faced difficulties. 41 In those circumstances, the applicant succeeded substantively in relation to a claim that concerned his liberty and did so because of steps taken by the Minister which, on the available evidence, manifested an acceptance of the overall merits of the applicant's claim. That is to say, those steps involved the Minister, in response to the commencement of the proceedings, immediately determining the application for a protection visa and, in consequence of the decision to grant the visa, releasing the applicant from detention. 42 Further, that event had significance for the habeas corpus claim. The applicant submitted on the costs application that even if the protection visa application had been rejected, upon that event the applicant would have been required to be released from detention on a bridging visa having regard to the recent High Court decisions in ASF17 and NZYQ. The Respondents did not dispute the applicant's submission in that regard. The Respondents' submission concerning the constitutional issue was confined to the merits of the contention that those decisions might provide a basis for a writ of habeas corpus before the protection visa application had been decided. 43 For completeness, I note that the applicant relied upon the decision in CZA19 v Commonwealth of Australia [2024] FCAFC 66 to support his claim to costs. While there are some similarities between the circumstances of that case and the present case, there are material differences. Each case requires a principled exercise of discretion having regard to the particular circumstances. Therefore, beyond its reliance upon the general principles to which I have referred I do not consider the reasoning in that case to assist. 44 Finally, as to the costs order, no submission was advanced to the effect that there should be any differentiation between the position of the two Respondents when it came to any order for costs that might be made. 45 In the circumstances I have outlined, I am satisfied that there should be an order that the Respondents pay the costs of the applicant of and incidental to the proceedings up to and including 21 March 2024 and the costs of the interlocutory application seeking those costs. 46 However, I am not satisfied that it has been demonstrated that the conduct of the Respondents or either of them was of a kind that justifies ordering those costs on an indemnity basis. Events moved quickly when proceedings were foreshadowed and then commenced. 47 I am not persuaded that there should be any order in relation to set-off. As was accepted in the course of oral submissions, the other costs orders relied upon are in favour of the Minister alone. The orders in the present case will be made against the Respondents. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.