Graham v Minister for Immigration and Border Protection

TRACEY J: 1 On 6 July 2018 I dismissed Mr Graham's application for judicial review of a decision to place him in immigration detention in the Goulburn Correctional Centre: see Graham v Minister for Immigration and Border Protection [2018] FCA 1012. 2 In my reasons for judgment I indicated that my then present view was that there should be no order for costs. This position was based on the particular circumstances of the proceeding, including that it was heard in conjunction with a related application in which Mr Graham successfully challenged the Minister's decision to cancel his visa: see Graham v Minister for Immigration and Border Protection (2016) 246 FCR 439; [2016] FCA 682. He also succeeded in challenging the subsequent cancellation decision made by the Minister: see Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350; 91 ALJR 890; [2017] HCA 33. 3 In Graham at [133] I stated that, if any party wished to argue to the contrary about costs, written submissions should be filed and served within 14 days of the publication of my reasons. The reasons were published on 6 July 2018 and the due date for submissions was 20 July 2018. 4 On 18 July 2018 the Minister filed and served submissions seeking a costs order in his favour. 5 On 20 July 2018 my chambers wrote to the parties to note that submissions were due on that date and to request that Mr Graham and the Attorney-General for the State of Victoria confirm that they did not intend to file any submissions. The other named respondents, the Secretary for the Department of Immigration and Border Protection and the Commonwealth of Australia, had not taken an active part in the proceeding. 6 On 23 July 2018 the solicitors for the Attorney-General, who had intervened pursuant to s 78A of the Judiciary Act 1903 (Cth), confirmed that he would not make any submissions on costs. No response was received from Mr Graham's solicitor. 7 Mr Graham's solicitor had earlier, on 12 July 2018, confirmed via email sent to my chambers that he had received a copy of the judgment which was sent by email to him. 8 In these circumstances I am prepared to treat the Minister's application for costs as unopposed.

The Minister's submissions 9 The Minister noted that the Court's discretionary power to award costs is found in s 43 of the Federal Court of Australia Act 1976 (Cth). The ordinary course was that a successful party should have an order for costs made in his or her favour absent special circumstances: see, eg, Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27 at [5] (Kenny, Edmonds and Rangiah JJ); Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234-235; [2001] FCA 1865 at [11] (Black CJ and French J). Those circumstances must be "connected with the case": see, eg, Vadarlis (No 2) at 234 [9]; Te v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 497 at 515; [2004] FCAFC 15 at [78] (French, Sackville and Hely JJ). 10 He submitted that the factors summarised at [2] above were insufficient to justify a departure from the usual rule that a successful party should have his or her costs. 11 He emphasised that the decision to cancel Mr Graham's visa was separate from the decision to place him in the Goulburn Correctional Centre. Although the latter decision flowed from the former, they were legally discrete. The grounds on which Mr Graham challenged each decision were different, those challenges were heard sequentially rather than at the same time, and the Attorney-General's intervention was confined to the placement decision. It followed that Mr Graham's success in challenging his cancellation decision (and his subsequent success in the High Court) should not stand in the way of the Minister receiving his costs. If Mr Graham had the benefit of costs orders in his favour when the Minister failed then so too should the Minister if Mr Graham's arguments were not accepted. That costs remained unresolved was one reason that there had been utility in judgment being delivered: see Graham at [23]. 12 It was immaterial that the Minister had sought final judgment: see Graham at [23]. Although he had an interest in judgment being delivered, as questions about the Migration Act 1958 (Cth) would be determined, this did not tell against an award of costs. 13 First, his costs had been incurred at an earlier point when Mr Graham remained in detention and the placement decision was operative. 14 Secondly, this proceeding was conducted in Mr Graham's personal interests, rather than the public interest. This was so even though he made constructional arguments about the Act: see AEK15 v Minister for Immigration and Border Protection (2016) 244 FCR 328 at 342-343; [2016] FCAFC 131 at [66] (McKerracher, Griffiths and Perry JJ); cf Vadarlis (No 2) at 242 [29]. That the judgment might have consequences beyond him was unsurprising, given the statutory regime, and was not a significant consideration: Plaintiff B9/2014 (No 2) at [14]. 15 Thirdly, this proceeding was concerned only with Mr Graham's place of detention. Even if he had succeeded he would have remained in detention: cf Plaintiff B9/2014 (No 2) at [13]. That a case involves an individual's liberty does not displace the ordinary rules of costs: Vadarlis (No 2) at 240-241 [25]. 16 Finally, the Minister submitted that the fact that Mr Graham is currently outside Australia does not mean that a costs order would be futile. In any event, futility is not a basis to refuse costs: cf Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212 at [5] (French, RD Nicholson and Finkelstein JJ); ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [51] (Allsop CJ, Kenny and Griffiths JJ); MZARS v Minister for Immigration and Border Protection [2017] FCA 177 at [36] (Kenny J). If costs were awarded in favour of the Minister he proposed to offset those costs against the costs order made in Mr Graham's favour in the High Court.

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Judgment (4 paragraphs)

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Legislation Cited (3)

Cases Cited (15)