MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. In proceeding MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442 there be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KERR J: 1 On 30 April 2021 the Court published reasons in MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442 (MB). The Court ordered that the Applicant's application for an order in the nature of habeas corpus be dismissed. It further ordered that unless a different order was applied for the Applicant pay the Respondent's costs as agreed, or in default of agreement, as taxed. 2 The Applicant has sought a different order. He submits that the appropriate order is that there be no order as to costs. I have accepted the Applicant's submissions for the reasons that follow. In that regard they draw on my reasons in MB which should be read in conjunction with this decision. 3 The Applicant does not dispute that ordinarily a party which fails to make good their claim will be ordered to pay costs. However specifically in respect of an unsuccessful litigant challenging his detention, he refers to the reasoning in Cabal v United Mexican States (No 6) (2000) 174 ALR 747 (Cabal) in which Goldberg J stated (at [22]): 22. Although an order for costs is made to compensate a successful party for the expenses incurred in responding to an application or proceeding, that principle of compensation should yield in favour of the principle that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty. There is a public interest in ensuring that persons detained against their will should not have any impediment put in their way which will inhibit them in seeking their liberty. In my view that public interest outweighs the general rule that a successful party is to be compensated for its costs by the unsuccessful party. In particular is this so where the costs are incurred by the State under whose authority the person is detained. 4 While conceding that the decision of the Full Court in Te v Minister v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 15 (Te) makes clear that the statement of Goldberg J is not to be applied as an inflexible rule of law, the Applicant submits that the principle his Honour stated in Cabal remains a recognised factor in applications concerning immigration detention. It is thus relevant to the exercise of the Court's discretion in the present case. 5 The Minister accepts that the fact that the Applicant was seeking release from allegedly unlawful detention is a factor in favour of his position on costs but submits it is far from determinative. 6 The Minister submits that none of the other factors advanced by the Applicant are in his favour. Mr Tran sums up the Minister's position in the submission that the circumstances in this proceeding are significantly analogous to that in Te: there was no evidence contrary to the Respondent's primary case which the Court accepted, the decision of the High Court in Plaintiff M96A/2016 v Commonwealth (2017) 261 CLR 582 (M96A/2016) was clearly against him, and the criticism that the Court had made of the delay in providing the Applicant with medical attention had not been an issue in the case. 7 With respect I differ from that analysis. 8 The question of delay in the Applicant's medical treatment and the proposition that there was no conflicting evidence are inherently interrelated in the facts in MB. 9 The Applicant was brought to Australia from Nauru for the temporary purpose of receiving medical treatment for his gastrointestinal condition. 10 He commenced his proceedings in MB by Summons in the Victorian Supreme Court on 18 December 2020. 11 The undisputed evidence that Mr Tran refers to is that contained in an affidavit filed in this proceeding on 27 January 2021. In that affidavit it was revealed that although the Applicant had been provided with some basic medical treatment, his underlying condition had not been investigated by a specialist and he had yet to be fully treated after his having arrived in Australia. 12 It was in that circumstance that the Applicant accepted that the temporary purpose for which he was brought to Australia remained to be satisfied. 13 Absent that affidavit, which I infer was filed in response to the bringing of these proceedings, it would have been open to the Applicant to contend that he had been brought to Australia for a temporary medical purpose which had not been fulfilled. I need not speculate as to how the proceeding would have been determined on those facts but it might have been argued that those facts were sufficient to enable the Court to conclude that the temporary purpose was no longer operative. 14 I therefore reject that the delay was not an issue in this case - it was when the proceedings were first filed in the Supreme Court. It remained so until that affidavit was filed and the Applicant accepted that the specialist medical treatment which he had not earlier been offered would in the future be provided. 15 Neither do I accept that the contingent proposition which was then advanced by the Applicant viz that in his factual circumstances, he was entitled to be released by reason that the primary purpose of his detention (to secure his being available for his ultimate return to Nauru) nonetheless did no longer apply (because he could be returned) was self-evidently wrong. 16 Mr Tran submits that "on existing High Court authority the position was clear". I reject that submission. I accept, of course, that the intersection between the relevant two purposes was extensively discussed in M96A/2016 but the reasons in that case do not in terms address the specific question posed by the Applicant in this case. 17 Self-evidently, notwithstanding its expressed hesitation, the Court ultimately accepted Mr Tran's submission that it was necessarily implicit both in the reasoning of the plurality and Gageler J in M96A/2016 that so long as a temporary purpose remains operative, the larger purpose, in the language of the plurality, remains in suspension prior to "various preconditions [being] met". Thus the detention of a person in the position of the Applicant remains objectively for the purpose of securing his availability for later removal whether or not that possibility might appear, during that period, remote or incapable of achievement. 18 However, what in retrospect might now seem clear was not self-evident, at least in the Court's view, prior to that point. 19 There was plainly tension between the proposition that there must be objectively determinable criteria for detention (as the High Court has repeatedly made clear) and the proposition that notwithstanding the asserted impossibility of return to Nauru that impossibility can be put aside and need not be considered until after the expiry of any temporary purpose for which a person may have been brought to Australia has come to an end. The contention advanced by the Applicant was not implausible. 20 That the Applicant originally commenced these proceedings in the Supreme Court of Victoria does not bear on my exercise of the discretion. Mr Tran does not submit otherwise. It is not in dispute that that Court also had jurisdiction. That Dixon J was persuaded by the submissions advanced by the Minister to transfer the proceedings to this Court because its judges have greater experience in the determination of matters relating to the operation of the Migration Act 1958 (Cth) is not suggested by the Minister to be disqualifying. 21 Finally although I do not regard it as constraining the exercise of my discretion I note Mortimer J's observations in DBE17 v Commonwealth of Australia No 2 [2018] FCA 1793 at [21]-[24] that where the liberty of the subject is concerned awards of costs may have a chilling effect and "there should be no chilling effect on responsibly conducted and arguable proceedings with such subject matter". 22 While the Applicant's proceedings were unsuccessful, this matter was responsibly conducted. All of his contentions on the substantive issues were at least arguable. 23 Bearing the above matters in mind I am persuaded that the specific considerations in this case I have discussed above, when added to the factors that Goldberg J identified as relevant in Cabal, support the Court's broad discretion not being exercised on the basis that costs follow the event, but rather as the Applicant submits for. 24 There will be no order as to costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr.