THE SUBMISSIONS AS TO COSTS
10 The applicant submits that the respondent should be ordered to pay his costs of this proceeding on an ordinary basis. He says that his substantive application was "at a human level…solely about liberty", and that this is reflected by the first, penultimate and last paragraphs of his written submissions for the final hearing which said the following:
At a human level, this is a case solely about liberty - 'the most elementary and important of…basic common law rights'.
…As the Full Court of this Court very recently observed:
s 189 causes suffering to the detainee and cost to the Commonwealth. It should not be permitted to continue longer than necessary.
After almost 900 days in detention and associated 'irreparable harm', Mr Grant should re-gain his liberty elsewhere and the Respondent should be forced by court order to start pursuing that end according to law.
11 He contends that by reason of the Minister's belated, unilateral action, in granting him the visa, his application was rendered moot. Specifically, he argues that the respondent should pay his costs because:
(a) the ordinary rule is that costs follow the event, and the event being sought in this case was liberty. Through the Minister's action, the applicant received "the substantive outcome that he sought in this proceeding", citing Kheir v Secretary to the Department of Justice and Regulation [2019] VSC 76 at [23]-[24] (Richards J);
(b) the fact that s 195A was exercised just three days after the final hearing and not days before led to a significant waste and inefficient use of this Court's time and resources. He said this is a direct breach of the respondent's obligations under s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA). Section 37N(4) requires that this must be taken into account on the question of costs; and
(c) all costs of this proceeding would have been avoided had the applicant been granted a visa after the proceeding was issued and before he incurred costs. The applicant says that the decision to exercise the Ministerial power mere days after judgment was reserved was entirely in the respondent's control and that the decision should have appropriate costs consequences.
12 He argues that each of these three reasons have heightened significance as the respondent is an emanation of the Crown, which must act and be seen to act, as a model litigant. He says that by wasting time and expense by taking the belated action to grant the applicant a visa which rendered the proceeding moot, especially in the inherently urgent context of prolonged detention, the respondent did not act in a manner above what may be expected from other litigants.
13 The respondent opposes the application for costs and submits that the appropriate order is for each party to bear their own costs. He submits that because the applicant did not seek habeus corpus the applicant's case was not about liberty. He says that the applicant did not obtain the substantive outcome that he sought in this proceeding because he did not seek that he be granted a visa under s 195A of the Act or otherwise (and nor could he reasonably have done so).
14 He says that it is unnecessary for the Court to determine whether or not the applicant's claims would have succeeded because the claim for that relief has been rendered moot by the grant of the visa by the Minister, who is not a party to the proceeding. The respondent says that determining the applicant's claims on their merit for the purpose of determining the applicant's costs application would be a burden on the Court's resources, and would also give rise to complications in circumstances where further relevant cases have been decided in the intervening period since the Court reserved judgment on 9 November 2021.
15 The respondent relies on the decision in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 as explained by Hayne J in Plaintiff M40/2015 v Minister for Immigration and Border Protection [2015] HCATrans 97. In Lai Qin, an application by the prosecutrix for judicial review of a tribunal decision was rendered moot by the Minister exercising his personal discretion to grant her a protection visa under s 417 of the Act. The applicant sought her costs on the basis that the Minister should have advised her prior to the commencement of the proceedings that he was reconsidering her application. McHugh J explained (at 625) that "[i]f 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". McHugh J held that the prosecutrix had acted reasonably as she had an arguable case (at 626), and it was reasonable for the Minister to defend the tribunal's decision (at 627), and accordingly his Honour made no order as to costs.
16 In Plaintiff M40/2015, the plaintiffs sought orders to quash a decision of the Minister to revoke residence determinations made in relation to them (that is, "community detention" determinations) under s 197AB of the Act. If the applications had succeeded, the residence determinations would have been operative, and the plaintiffs would have resumed living in the community rather than being held in an immigration detention facility. However, before the hearing the Minister granted visas to both applicants under s 195A. Hayne J rejected the plaintiffs' applications for costs, applying Lai Qin and noting that the defendants had not been unreasonable in defending the proceedings. His Honour also observed the following in his ex tempore reasons:
…[I]t is important to notice that the grant of visas under section 195A to each plaintiff has the consequence that they are no longer classified under the Act as "unlawful non-citizens". Each now holding a visa, each is a lawful non-citizen in Australia. Because each has that status, neither may be detained in immigration detention. The claims which each plaintiff made in this Court were not directed to challenging their status as unlawful non-citizens. The claims which each plaintiff made were confined to challenging the validity of the revocation of a residence determination.
The plaintiffs are right to say that the grant of visas under section 195A of the Act overtakes - it might be said overwhelms - the dispute which had been the subject of the proceedings in this Court. In that sense the plaintiffs are right to say that they have achieved all that they sought to achieve in the proceedings that they instituted. It is, however, important to recognise that not only have they achieved what they sought to achieve by the proceedings they instituted, the Minister's grant to them of visas gives them a status which they did not have.
(Emphasis added).
17 The respondent argues that analysis applies here a fortiori. He says that the plaintiffs in Plaintiff M40/2015 got more than they sought (liberty on a visa, rather than merely liberty in community detention). Whereas in this case, the respondent submits that the applicant did not seek orders to be at liberty in Australia at all; but the Minister now having granted him the visa, he has a status ("lawful non-citizen") that "overtakes" and "overwhelms" the relief previously sought (mandamus, injunction and change in location of detention). The respondent submits that absent unreasonable conduct by the respondent in the litigation, it clearly follows that there should be no order for costs.