Costs of the proceeding
16 Although orders as to costs are discretionary, and CZA19 therefore does not lay down a principle that is binding in a strict sense, consistency in the exercise of the discretion is clearly desirable. CZA19 was a unanimous decision of three experienced judges of this Court and I should approach this case consistently with it.
17 The facts of CZA19 have been mentioned above. The reasoning of the Full Court (at [5]) is sufficiently brief to be quoted in full.
We are satisfied that the applicant should have his costs of the separate question, as agreed or taxed. That is because as the applicant submits:
(1) he succeeded in obtaining the practical outcome he pursued by way of the separate question, namely release from immigration detention and a decision on his application for a protection visa. Had the applicant been denied his protection visa application and released prior to commencement of the proceeding or at least prior to further substantive steps having been taken, he would not have been required to advance a case seeking relief including mandamus to compel the executive to perform its duty;
(2) contrary to the respondents' contention, there was no agreed fact that as at 1 May 2024 the applicant's protection visa application "was at the final stage of processing";
(3) even if that application was at the "final stage" by the time the parties finalised the statement of agreed facts, there is no evidence as to why the final stage took approximately five weeks to crystallise into a decision, no evidence of what occurred in the intervening period and no evidence of why the decision happened to coincide with the time at which the respondents' submissions were due to be filed. No notice was given to the applicant of an anticipated time frame for the decision either before or after commencement of the proceeding;
(4) the circumstances of this case bear some similarity to those in Grant v Secretary Department of Home Affairs [2022] FCA 261 where, after a final hearing but before delivery of judgment, the applicant was granted a visa and the only question to be resolved was that of costs. Justice Murphy awarded costs to the applicant. His Honour did so for two reasons, the first of which concerned a finding (at [20]) that in that case "it [was] possible to say that the applicant would have been substantially successful, had he not been granted the visa". His Honour found that the case was plainly distinguishable from the decision in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622. Here, although there was no hearing and the respondents did not file their submissions, it is plain that the applicant would succeed at least in obtaining the relief he sought in para 2 of his originating application, a writ of mandamus directing the Minister to make a decision on his protection visa application. That the Minister, days before the hearing, accepted the inevitable state of affairs takes the case outside of cases such as Lai Qin; and
(5) the second consideration in Grant was his Honour's view that although "the relief the applicant sought would have produced a different (and for him, lesser) result than that which he obtained through the grant of a visa", the application was "in a real sense" about his liberty. The same can be said here.
18 In so far as the applicant sought mandamus, the respondents accept in the light of CZA19 that it is appropriate that they should be ordered to pay the applicant's costs.
19 While the applicant initially appeared to seek those costs on an indemnity basis, his written submissions in reply appear to accept that an order for costs on the usual party-party basis is appropriate in relation to the claim for mandamus. To the extent that a claim for indemnity costs is pressed, I would reject it.
(a) The award of costs focuses on the litigation, rather than the facts that form its subject matter, and indemnity costs should therefore (at least ordinarily) be considered as a response to unreasonable behaviour in the conduct of the litigation rather than a way of signalling disapproval of anterior actions: NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] FCA 480; 109 FCR 77 at [56] (Lindgren J); Graham Barclay Oysters Pty Ltd v Ryan (No 2) [2000] FCA 1220 at [13] (Lee, Lindgren and Kiefel JJ). The reasons why the resolution of the applicant's protection visa application took what appears at first blush to be an inordinately long time have, in any event, not been the subject of evidence let alone findings.
(b) The respondents' conduct of the proceeding has not been shown to be out of the ordinary. When the grant of a visa rendered the claim for mandamus otiose, the proceeding had been on foot for approximately two weeks and one week had passed since the first case management hearing. The respondents' evidence was due to be filed two days later. While the respondents should have sought amendments to the timetable at that point, the decision not to file evidence on issues that had become moot was understandable. There is no evidence of delay on the respondents' side or of any prolonging of the proceeding despite consciousness that they were defending a hopeless position. If it be the case that the decision to grant the visa was accelerated by the commencement of the proceeding and an appreciation that mandamus was likely to be ordered, that suggests an appropriate response to the litigation on the part of the respondents' officers rather than an inappropriate one.
20 In so far as the applicant sought habeas corpus, I do not accept the submission of the respondents that the application was bound to fail (and that this aspect of the case therefore comes within one of the exceptions, identified in Lai Qin at 624-625, to the general proposition that there should be no order as to costs if there has not been a hearing on the merits).
(a) It is true that (as recited in NZYQ at [31]) the "legitimate and non-punitive purposes" for which a non-citizen can be detained have often been "identified in terms of removing the alien from Australia or enabling an application by the alien for permission to remain in Australia to be made and considered". However, there is a coherent argument to the effect that, where a person is detained in order to separate them from the Australian community pending a decision as to whether they are to be allowed to remain in Australia, that is a legitimate purpose only on the footing that the person can be removed if permission to remain is refused. Thus, it was observed in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 at [33] (French CJ, Hayne, Crennan, Kiefel and Keane JJ) that the lawful detention of a non-citizen under the Act was "ultimately bounded" by the requirement to effect their removal because this was the terminating event that, "all else failing, must occur". These observations were referred to in Commonwealth v AJL20 [2021] HCA 21; 273 CLR 43 at [27]-[28] (Kiefel CJ, Gageler, Keane and Steward JJ) as explaining the basis upon which detention under ss 189 and 196 of the Act is lawful. These statements cohere with how the power to authorise executive detention was described in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 32 (Brennan, Deane and Dawson JJ). It might be thought to follow that the principle recently established by NZYQ, as to the absence of a "legitimate and non-punitive purpose" for detention when the "ultimate" purpose of removal is incapable of fulfilment, has work to do when a non-citizen is detained pending a decision on a visa application.
(b) This is not an appropriate occasion to determine the issue and I should not be taken to be expressing a view as to what is the correct position. The issue arises squarely in two cases that had been listed for hearing before a Full Court but have now been removed into the High Court: CZA19 v Commonwealth (M66/2024) and DBD24 v Minister for Immigration, Citizenship and Multicultural Affairs (P29/2024). It will also arise in the separate proceeding in which the present applicant seeks damages. I merely observe that it is possible to construct a coherent argument in favour of the applicant's position and the claim for habeas corpus should therefore not be regarded as having been bound to fail.
21 Nor, however, would I accept that the claim for habeas corpus obviously had such strong prospects as to call for a specific award of costs in the applicant's favour on this issue, let alone on an indemnity basis.
22 The issue that therefore arises is whether, for the purposes of making orders on costs, the case should be disaggregated into its two component claims or treated as a single dispute. The court in CZA19 took the latter approach (although it is not clear from the reasons whether the Court was asked to deal with the costs of mandamus and habeas corpus separately). The two forms of relief sought in the present case are, if anything, more closely connected in terms of practical outcomes than was the case in CZA19.
(a) There, the decision which the applicant had sought to compel by mandamus was made adversely to him. A delegate then made a separate decision (not the subject of any proceedings) to grant the applicant a bridging visa; and it was that grant that resulted in his release from detention. It was this combination of decisions that the Full Court regarded as aligning with the "practical outcome" that the applicant sought.
(b) Here, the decision that the applicant sought to compel by mandamus was made favourably to him. It was the direct cause of his release from detention and thus rendered both prayers for relief otiose. The achievement of the "practical result" sought by the applicant thus flowed directly from the Minister doing part of what he was seeking to compel the respondents to do.
23 Although determination of the claims for mandamus and habeas corpus would to some extent have involved distinct bodies of evidence, the claims were connected and in my view should be treated as parts of a single dispute for costs purposes. The case might take on a different complexion if costs were being decided following a final hearing in which the parties had been put to significant expense in assembling and adducing evidence, and the particular evidence relevant to each claim could be concretely identified. However, as a general rule applications regarding costs on an issue by issue basis should not be encouraged: see the cases cited in Fairfield Pastoral Holdings Pty Ltd v Van Niekerk (No 2) [2024] FCA 61 at [9]-[10], [15].
24 Accordingly, subject to the further issues addressed below, the appropriate order is that the respondents pay the applicant's costs of the proceeding, as agreed or assessed on the usual basis.