Pull v Minister for Immigration & Citizenship

The Applicant 21 Both parties filed comprehensive submissions on their respective positions in relation to the costs issue. 22 The applicant's contention is that the Minister's grant of the s 195A visa has rendered both the claim for mandamus and declaratory relief redundant. According to the applicant, the critical issue has always been whether the applicant is a lawful or an unlawful non-citizen; the s 195A visa now confers upon the applicant the status of a lawful non-citizen and authorises his release from detention. 23 According to the applicant, the Minister incorrectly fuses (i) the question whether the applicant is a lawful non-citizen, being a 'non-citizen in the migration zone who holds a visa that is in effect' (s 13 of the Act (emphasis added; see definition of 'visa': s 29)), with (ii) the discrete, and now futile, question whether the applicant holds a particular visa, namely a TP visa. The applicant says that the first question is answered completely by the grant of the s 195A visa; the second question is futile. The applicant does not require a declaration regarding his possession of a second visa: 'The Court does not act in vain': Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1595 per Lord Wilberforce; cited in Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [58] per Gaudron and Gummow JJ. 24 The applicant made the following submissions as to why he had to take the course that he did in seeking the relief he sought in NSD 17/2009: (1) The applicant could only seek his release from detention by applying for a 'constitutional writ' of mandamus. But mandamus could only run to enforce a right based on the applicant's status as a lawful non-citizen. (2) The applicant requested a determination of his status via a declaration that he held a TP visa for the following reasons: (a) Prior to the grant of the 195A visa on 12 May 2009, the only way the applicant might have attained the status of lawful non-citizen, was as a holder of a TP visa; he had no other visa. To ask for declaratory relief in relation to his TP visa was the cleanest way to 'cut through to' the issue that would determine whether he was a lawful or unlawful non-citizen. (b) The applicant could not challenge the cancellation decision directly. This Court is deprived of jurisdiction to hear a challenge to the decision of the primary decision-maker. (c) Nor could the applicant challenge the Tribunal's decision affirming the primary decision. This Court (Besanko J) had determined his application to review the Tribunal's decision (albeit on the law as it stood before Sales case). A fresh application (rather than an appeal) could not be brought in respect of this application due to the time limit in s 477 of the Act. An appeal brought out of time from the decision of Besanko J, could only proceed by grant of leave, and not as of right. 25 The applicant made the following submissions on the effect of the s 195A visa on the proceedings: (1) The grant of the s 195A visa on 12 May 2009, removed the controversy which underlay proceedings NSD 17/2009 and SAD 52/2009. The applicant now has a visa and resides freely in the migration zone as a 'lawful non-citizen'. There is no need for an order in the nature of mandamus. (2) The basis for declaratory relief has also fallen away. A suit for declaratory relief would only result in a declaration that the applicant holds a second visa; or a determination (or declaration) that he is not in possession of a second visa. Neither outcome will alter any legal right or liability of the applicant, for he is now a lawful non-citizen. (3) The relief sought in the application is now futile. In such cases, the Court exercises its discretion to refuse relief (Aala at [59]; SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [29]), and it is responsible practice for an applicant to desist from pursuing such relief. (4) At the directions hearing on 3 June 2009, the Minister appeared to invite the applicant to clarify his TP visa status, suggesting that his s 195A visa was only temporary. The applicant also has no interest in acceding to such a request; he does not favour the possession of a TP visa over his current s 195A visa. It has been, and remains, common ground that the applicant fails the 'character test' under s 501 of the Act (Pull v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 20). Any TP visa held by the applicant would be vulnerable to a new cancellation on this ground. Even if he did have such an interest, such an interest is insufficient to constitute a matter in federal jurisdiction (Griffith University v Tang (2005) 221 CLR 99 at [90]). 26 On the costs issue, the applicant referred the Court to the following principles in a case of discontinuance for futility and their application in the present case: (1) When a party, for its own reasons, discontinues a proceeding with leave pursuant to O 22 r 2(1)(d) of the Rules, the respondent is not automatically entitled to have the applicant pay his or her costs. Rather, costs are in the discretion of the Court under s 43(2) of the Federal Court of Australia Act 1976 (Cth) (Inground Constructions Pty Ltd v Federal Commissioner of Taxation (1994) 27 ATR 513; Sullivan v Secretary, Department of Defence [2005] FCA 786 at [13] (Stone J)). The 'conduct of the parties in the matter and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs' (O'Neill v Mann [2000] FCA 1680 at [13] (Finn J); Sullivan at [13] (Stone J)). (2) A fortiori the significance of discretionary considerations in a case where the discontinuance is merely the procedural vehicle to terminate the dispute, and any futility in the proceedings has not been brought about by an external event, or the applicant's change of heart (cf., Smith v Airservices Australia (2005) 222 ALR 464 at [58] - [59]), but by the opposing party's change in position. (3) Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624 - 625 suggests a structure for the exercise of a broad discretionary power. It does not lay down a rule which substitutes for the discretion of the Court. The critical considerations were stated by McHugh J as follows: In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. 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 had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd [[1971] QWN 13], the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. 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… But such cases are likely to be rare. 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 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. This approach has been adopted in a large number of cases. (4) Without a hearing on the merits, the Court is unable to be guided by the general rule as to costs. The difficulty cannot be resolved by embarking on a hypothetical consideration of which party would have been successful had the action proceeded. But the Court may consider the reasonableness of the conduct of the respective parties until the discontinuance (Smith v Airservices at [46] - [47]). 27 In assessing the conduct of the parties, the applicant submitted that the Court should consider the following matters - (1) The applicant was successful in obtaining the relief which he claimed in the main proceeding (NSD 17/2009) - he was released from detention. (2) The basis for detention has always been the applicant's status as an unlawful non-citizen. The applicant has been successful in obtaining the status of lawful non-citizen. (3) Prior to the litigation, there was never any indication that the Minister would grant the applicant this status. The Minister detained the applicant twice between 15 June 2005 and November 2008 by (i) cancelling his TP visa on 'character grounds' and detaining him until July 2008; and (ii) then enforcing the (purported) retrospective validation of that cancellation by detaining him from November 2008 through to May 2009. (4) On 9 March 2009, the applicant invited the Minister to release the applicant or notify his position within seven days (extended by three days to accommodate a claim of late receipt) and received no response. On 20 March the applicant repeated his request, and received no response until 31 March 2009. Express reference was made in both items of correspondence to the question of costs and reliance on that correspondence for the recovery of costs. (5) The subject matter of the proceedings was removed by the Minister's grant of the s 195A visa without prior notice. This reversed the Minister's stance on the applicant's detention expressed (i) in writing, as late as 31 March 2009; and (ii) by conduct, as late as 12 May 2009. (6) At all relevant times, the Minister held a personal discretionary power to grant a s 195A visa which could be exercised swiftly under the minimal procedures stipulated by s 195A. The Minister chose not to exercise that power. (7) The applicant was deprived of his liberty for 43 months in total. (8) No explanation for the grant of the s 195A visa has been offered by the Minister. (9) Following the grant of the s 195A visa, the applicant accepted the futility of the proceedings, and indicated to the Minister and to the Court that he would discontinue the proceedings. There was no attempt by the applicant to pursue futile or hypothetical questions which would waste the resources of the Court and the parties. 28 The applicant submitted that the Court should find that the grant of the s 195A visa upon a ministerial determination of an undisclosed 'public interest' occurred under the pressure of a Full Federal Court hearing on the constitutional validity of Item 7 of the amending statute. 29 In conclusion, the applicant submitted that: (1) The conduct detailed in [27] and [28] above should enliven the Court's discretion to award the applicant his costs until 12 May 2009 (and the costs of his costs application). (2) The applicant was put to considerable cost and became upset in trying to obtain his liberty. This liberty was obtained by means of the proceedings. All previous entreaties to release him were refused. (3) The Minister refused to settle, even when confronted squarely with the question of costs. The Minister should not be permitted to walk away without paying the applicant's costs.

The Minister 30 The Minister referred to the Court's broad discretionary power in relation to costs afforded by s 43 of the Federal Court Act; noted that the discretion should be exercised judicially and referred to the same passage in the reasons of McHugh J in Lai Qin referred to by the applicant and recited in [26(3)] above. 31 It lay at the heart of the Minister's submissions that the Minister's decision to grant the applicant a s 195A visa did not render the declaratory relief he sought in NSD 17/2009 'moot'. According to the Minister, the issue of whether or not the applicant is in fact the holder of a TP visa is a live issue in that there remains a real and ongoing dispute between the parties as to the entitlement of the applicant to remain in Australia beyond the life of the s 195A visa granted to him; while the urgency of the resolution of that dispute is no longer present, that fact does not render the dispute between the parties moot. 32 The Minister submitted that the power he ultimately exercised to grant the applicant a s 195A visa is a 'non-compellable' power and the failure of the Minister to exercise that power by any particular date, or at all, can never be unreasonable in the relevant sense. 33 The Minister further submitted that the applicant's submission in [28] above, namely, '… that the grant of the s 195A visa upon a ministerial determination of an undisclosed "public interest" occurred under the pressure of a Full Federal Court hearing on the constitutional validity of Item 7 of the amending statute' should never have been made. According to the Minister, such a submission is simply not available on the known facts and should be rejected by the Court. 34 In conclusion, the Minister submitted that the appropriate order, in the exercise of the Court's discretion, is that there should be no order for costs.

ANALYSIS 35 There can be no argument that the Minister's grant of a s 195A visa to the applicant rendered the latter's application for relief in the form of mandamus to be released from detention totally redundant. I do not understand the Minister's submissions to contend otherwise; indeed, they are silent on this particular issue. Such relief was a significant component of the overall relief sought by the applicant in proceeding NSD 17/2009. 36 The other significant component of the overall relief sought by the applicant in proceeding NSD 17/2009 was the declaratory relief that the applicant was a 'lawful non-citizen' by reason that he was the holder of a TP visa which had not been cancelled (Sales), even with the aid of amending legislation purporting to retrospectively validate the cancellation, because that legislation was invalid. 37 The Minster's submission that the declaratory relief sought by the applicant was not rendered 'moot' by the grant of the s 195A visa is, in a juridical sense, correct; but as a practical matter, the grant of that visa rendered the declaratory relief sought futile. Why would the applicant, with little or no financial resources and dependent, for the able prosecution of his case, on the O 80 relief I determined on 4 February 2009, want to continue to press for that declaratory relief when his status as a 'lawful non-citizen' was no longer in issue, at least until the s 195A visa expired in 12 months time when, he had been informed, the Minister would review his case? 38 The Minister did not contend, nor could he, that the applicant acted unreasonably in taking the action he did in either proceeding; and the applicant did not contend that the Minister acted unreasonably in opposing those proceedings; at least in express terms. 39 There is an inference in the applicant's submissions that the Minister acted unreasonably in not taking up the invitation in the applicant's solicitors' letter of 9 March 2009 ([14] above), but I am not prepared to find any such inference even if it can be drawn. 40 Nor am I prepared to make any finding along the lines of that submitted by the applicant in [28] above, that the grant of the s 195A visa upon a ministerial determination of an undisclosed 'public interest' occurred under the pressure of a Full Federal Court hearing on the constitutional validity of Item 7 of the amending statute. There is no evidence whatsoever to support any such finding. 41 On the other hand, I do find the Minister's action in granting the s 195A visa to be totally inconsistent with his position up to that point in time, having regard to the following: (1) The initial cancellation of the applicant's TP visa and his arrest and detention for over three years; (2) the Minister's sponsorship of retrospective legislation designed to validate his cancellation decision in the face of Sales; (3) the subsequent arrest and detention of the applicant for a period of six months; and (4) the absence of any explanation for the Minister's grant of the s 195A visa. 42 The Minister's change of position, unmoved by any external event and otherwise unexplained, leads me to the view that the applicant should have his costs in NSD 17/2009 but not in SAD 52/2009. The latter proceeding was unnecessary and each party should pay its own costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Solicitor for the Applicant: Corrs Chambers Westgarth

Solicitor for the Respondents: Australian Government Solicitor