WAKX v Minister for Immigration & Citizenship

Federal Court of Australia|2008-09-16|Before: Lee J, Merkel J, Gilmour J

REASONS FOR JUDGMENT 1 The applicant, by a notice of motion filed on 14 November 2007 seeks an order to enlarge the time within which he may seek an order for costs, and for orders directing the respondent to pay the applicant the costs of his substantive application including reserved costs.

Background 2 The following background is taken directly from the respondent's written outline of submissions. It is common ground between the parties except that the applicant would add that no step has been taken by the respondent in respect of the motion by which he sought to return the applicant to an immigration centre. 3 The applicant, who claims to be a citizen of India, arrived in Australia unlawfully on 9 September 1998. As an unlawful non-citizen within the meaning of s 14(1) of the Migration Act 1958 (Cth) (the Act), he was detained as required by ss 189(1) and 196(1) of the Act. 4 On 24 September 1998 the applicant lodged an application for a protection visa which was refused by a delegate of the former Minister for Immigration and Multicultural Affairs on 20 October 1998. 5 On 23 October 1998 the applicant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate's decision. On 11 January 1999 the Tribunal affirmed the delegate's decision not to grant a protection visa to the applicant. 6 The applicant did not seek judicial review of the Tribunal decision but made numerous requests to the respondent to exercise the powers conferred by ss 417 and 48B of the Act to either substitute a more favourable decision to the applicant or to allow him to make a further application for a protection visa. 7 On 16 October 2002, the applicant filed an application in this Court in which he claimed to have been denied access to legal and educational facilities while in immigration detention at the Perth Immigration Detention Centre. The applicant sought urgent interlocutory relief in relation to his application. 8 On 1 November 2003, Lee J made directions, including a direction that the parties attend the Registrar for mediation. His Honour also made a referral for pro bono representation for the applicant under O80 of the Federal Court Rules. The parties attended several mediation conferences, but the matter was not resolved and was listed for a directions hearing before Lee J on 6 June 2003. 9 By a minute of proposed order dated 6 June 2003, the applicant sought leave to amend his application to seek a writ in the nature of habeas corpus for his release from immigration detention in accordance with the decision of Merkel J in Al Masri v Minister for Immigration and Multicultural Affairs [2002] FCA 1009; (2002) 192 ALR 609. An appeal from the decision of Merkel J was dismissed by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Al Masri (2003) 126 FCR 54 on 15 April 2003. The Full Court held that the power to detain under s 196(1)(a) of the Act is subject to an implied limitation that the period of mandatory detention does not extend to a time where there is no real likelihood or prospect in the reasonably foreseeable future of a detained person being removed and thus released from detention. 10 On 6 June 2003, Lee J made a further referral for pro bono assistance to the applicant and granted leave to the applicant to file and serve an amended application. His Honour also made directions to prepare the matter for hearing. 11 On 26 June 2003 an amended application was filed on behalf of the applicant who claimed an order in the nature of mandamus requiring the respondent to remove him from Australia to India within a time to be specified. In the alternative, the applicant sought an order, in the nature of habeas corpus, that the applicant be released from immigration detention. The applicant also claimed, by way of interlocutory relief, an order that he be released from immigration detention pending the hearing and determination of the application or, alternatively, an order that he be accorded reasonable access to his legal representative and to electronic materials related to the preparation of the proceedings. 12 In the grounds of the amended application, the applicant alleged that the respondent had continued to detain him and, notwithstanding the Tribunal decision on 11 January 1999 and the applicant's request, had failed to return the applicant to India or otherwise to remove him from Australia. The applicant alleged that he had requested removal from Australia on 21 September 2002 and that the efforts of the respondent's officers to obtain a travel document to enable his removal had proved fruitless in the past and was unlikely to prove successful in the reasonably foreseeable future. The applicant contended that he was being held in detention unlawfully. 13 Also on 26 June 2006, the applicant filed a notice of motion for an order that the respondent be restrained from continuing to detain the applicant in immigration detention under the Act, subject to the applicant undertaking to comply and thereafter complying with the terms of any conditions as to his place of residence and in reporting to the respondent as required by the Court. 14 On 3 July 2003, Lee J listed the applicant's motion for hearing on 16 July 2003 and directed that the parties file a minute of proposed conditions of release if an interim order was to be made as sought. His Honour also ordered the applicant to file an undertaking to abide by whatever conditions the Court might impose if the order was to be made. 15 At the hearing on 16 July 2003, the respondent opposed the applicant's application for interlocutory release. In written submissions dated 16 July 2003, the respondent submitted that, although binding on single justices of the Court, the Full Court decision in Minister for Immigration and Multicultural Affairs v Al Masri (2003) 126 FCR 54 was wrongly decided and ought not be followed. The respondent also submitted that there was a real likelihood or prospect of removal of the applicant in the reasonably foreseeable future and that efforts to remove him to date had been frustrated by his failure or refusal to disclose his true identity or to provide sufficient information to enable verification of his identity by the relevant authorities in India or Pakistan. 16 On 16 July 2003 Lee J adjourned the applicant's motion to 6 August 2003 and made directions for further affidavits to be filed. 17 On 6 August 2003, Lee J made an interlocutory order that the applicant be released from detention until further order, upon conditions including payment of a bond of $3,000. A Minute of Conditions of Release was attached to the order and costs were reserved. 18 Written reasons for judgment were published by Lee J on or about 14 September 2004: WAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1639. His Honour was satisfied, in light of the Full Court decision in Al Masri, that there was an arguable case that continued detention of the applicant did not meet the purposes of the Act and that the applicant's continued detention would be unlawful. 19 The applicant was released from immigration detention in accordance with the order made on 6 August 2003. On 4 June 2004 a consent order was made by Lee J varying the applicant's reporting conditions. 20 Following the applicant's release from immigration detention, the parties did not seek to have the matter listed for trial pending the outcome of other proceedings before the High Court of Australia which raised similar issues in relation to the validity of the continuing detention of unlawful non-citizens who are unable to be returned to another country. 21 The matter was listed for a directions hearing on 9 July 2004 and on that date, Lee J made orders to prepare the matter for trial on a date to be fixed after 1 October 2004. Directions were made for the filing of affidavits and outlines of submissions. 22 On 6 August 2004 the High Court delivered judgments in Al-Kateb v Godwin (2004) 219 CLR 562 and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 219 CLR 664. In those cases, the High Court disapproved the Full Court decision in Al Masri and held that ss 189, 196 and 198 of the Act authorised and required the detention of an unlawful non-citizen, even if his removal from Australia was not reasonably practicable in the foreseeable future. 23 In light of the High Court judgments in Al-Kateb and Al Khafaji, the respondent's solicitors wrote to the applicant's pro bono counsel, Dr Cameron, by letter dated 2 September 2004 requesting that the applicant consent to an order dismissing the application or, in the alternative, discharging the order made by Lee J on 6 August 2003 that the applicant be released from detention. 24 By letter dated 5 September 2004, Dr Cameron advised that the applicant would not consent to an order dismissing the application or to the discharge of the order effecting his release. 25 On 17 September 2004 a motion was filed on behalf of the respondent seeking discharge of the order made by Lee J on 6 August 2003. No date was fixed for the hearing of the motion and the proceedings were listed for a directions hearing before Lee J on 19 November 2004. At that directions hearing, his Honour declined to list the respondent's motion for hearing, but made further directions to prepare the substantive application for hearing, including the filing of an amended application. 26 On 6 December 2004, a minute of proposed further amended application was filed on behalf of the applicant. The primary relief claimed was an order in the nature of mandamus requiring the respondent to remove the applicant to India within a time to be specified. Injunctive relief was also sought restraining the respondent from detaining the applicant in an immigration detention centre established under the provisions of s 5 of the Act. 27 In a further affidavit affirmed on 15 December 2004 in opposition to the respondent's motion, the applicant deposed that he married an Australian citizen on 10 November 2004 and that on 7 December 2004 his migration agent had written to the respondent seeking her intervention under s 417 of the Act, either to grant him a protection visa, or to permit him to apply for a spouse visa from within Australia. 28 On 8 February 2005 an affidavit was sworn by Christine Grimm of the Department of Immigration and Multicultural and Indigenous Affairs annexing documents in relation to the Department's continuing enquiries to establish the applicant's identity and effect his removal from Australia. 29 The proceedings were listed for a directions hearing before Lee J on 11 February 2005 and his Honour made orders that the application be amended in terms of the minute of proposed further amended application dated 6 December 2004. The time for the parties to file affidavits was extended and the matter was listed for a directions hearing on 1 April 2005, with liberty to apply. At the directions hearing on 11 February 2005, Lee J expressly declined to list the respondent's motion for hearing in advance of the hearing of the substantive application. 30 By a motion filed on 18 February 2005 in WAD 33 of 2005, the respondent sought leave to appeal from the refusal by Lee J to list for hearing the respondent's notice of motion seeking discharge of the interlocutory release order. The matter was heard before French J on 9 March 2005 and on 10 March 2005 his Honour made orders that the respondent's motion for leave to appeal be heard and determined on the papers by a single judge: see Minister for Immigration and Multicultural and Indigenous Affairs v WAKX [2005) FCA 227. 31 At the directions hearing on 1 April 2005, Lee J made orders for the filing of any further affidavits and amendment to the application. His Honour also directed the applicant to obtain an appointment from the Registrar by 27 May 2005 to set the matter down for hearing, including the respondent's notice of motion filed on 17 September 2004. 32 On 8 April 2005, the applicant filed a further minute of proposed further amended application. The applicant sought relief, including an order in the nature of mandamus and an injunction, in the same terms as sought in the applicant's minute of proposed further amended application filed on 6 December 2004. Additional paragraphs were included in relation to the respondent's duty to detain an unlawful non-citizen (paragraphs 15-19), but the grounds of the amended application were otherwise in the same terms as the minute filed on 6 December 2004. 33 On 20 May 2005 the respondent filed a statement of response to the applicant's minute of proposed further amended application. 34 The parties attended a listing conference on 6 July 2005, following which the application was listed for hearing before Lee J on 31 August 2005. 35 On 8 July 2005, French J dismissed the respondent's application for leave to appeal in WAD 33 of 2005 and ordered the respondent to pay the applicant's costs: see Minister for Immigration and Multicultural and Indigenous Affairs v WAKX (No 2) [2005] FCA 948. Those costs were agreed and paid by the respondent: see para 34 of the applicant's submissions. 36 On 30 August 2005, a consent order was made by Lee J that the hearing listed on 31 August 2005 be vacated and the matter listed for a directions hearing on a date to be fixed. The adjournment was sought by the parties pending a decision from the respondent in relation to the applicant's request under s 417 of the Act and consideration of whether to grant the applicant a bridging (removal pending) visa. 37 The proceedings were listed for a directions hearing before Registrar Jan on 31 August 2006 and were adjourned to 28 September 2006 pending consideration of the matter by the respondent. On 28 September 2006 Registrar Jan adjourned the directions hearing to 23 November 2006. 38 Further directions hearings were vacated or adjourned by consent orders made by Registrar Jan on 23 November 2006, 20 December 2006, 8 February 2007, 28 March 2007, 31 May 2007 and 8 August 2007. 39 On 10 April 2007, I made a consent order varying the conditions upon which the applicant was released from detention pursuant to the order made by Lee J on 6 August 2003. 40 On 16 October 2007, the parties' representatives were advised that the respondent was prepared to exercise his power under s 195A of the Act to grant the applicant a bridging (removal pending) visa. As the respondent's power could be exercised only in respect of persons in detention under s 189 of the Act, arrangements were made to discharge the order made by Lee J on 6 August 2003 releasing the applicant from detention, so that the applicant could be briefly detained before being granted a visa by the respondent. 41 A consent to the making of orders was filed on behalf of the parties and on 16 October 2007, Siopis J made orders by consent that: 1. The order made by Lee J on 6 August 2003 releasing the applicant from detention upon conditions be discharged at 12.30pm (WST) on Thursday, 18 October 2007. 2. The sum of $3,000 paid into Court on 6 August 2003 be repaid to the Uniting Church. 3. The application be dismissed. 4. The parties have liberty to apply for orders in respect of costs within 21 days. 42 On 18 October 2007 the applicant attended the Perth office of the Department of Immigration. He was briefly held in detention under s 189 of the Act and released later that day after the respondent granted him a bridging (removal pending) visa: see paragraph 6 of the applicant's affidavit sworn on 14 November 2007. 43 Neither party applied for any orders in respect of costs within 21 days of the order made by Siopis J on 16 October 2007. 44 On 14 November 2007 the applicant filed a notice of motion for orders enlarging time within which the applicant may seek an order for costs and directing the respondent to pay the applicant the costs of the substantive application, including reserved costs. The motion was supported by the applicant's affidavit sworn on 14 November 2007. 45 On 21 November 2007, I made a consent order for the filing of written submissions and for the applicant's motion to be determined on the papers.

Enlargement of time 46 The applicant seeks an extension of time under O3 r 3(1). Pursuant to His Honour's orders, the final date for a party to file an application of costs was 6 November 2007. The current application was filed by the applicant on 14 November 2007. 47 Counsel for the applicant admitted, and I accept, that the oversight was the fault of Counsel and not attributable to the applicant. It was submitted by the applicant, and not disputed by the respondent, that Counsel for the applicant had sent an email to the respondent's solicitors seeking their consent to a seven day extension of time. The respondent refused to consent to such an order on 9 November 2007 on the basis that the applicant was not entitled to costs. 48 The respondent neither consents nor opposes the applicant's application for an extension of time. 49 Having regard to the applicant's conduct, once realising his error, the short delay and the fact that there is no prejudice to the respondent caused by the delay, it is in the interests of justice that the extension of time sought should be granted.

Costs 50 The applicant appears to be seeking an order for costs in respect of the whole of the proceedings, including reserved costs. The application for costs needs to be considered by reference to the applicant's claims at different stages of the proceedings, namely: 1. the applicant's initial application for access to legal and educational facilities while in immigration detention; 2. the applicant's amended application seeking mandamus and, in the alternative, an order, in the nature of habeas corpus, that the applicant be released from immigration detention; and 3. the applicant's further amended application seeking mandamus and an injunction restraining the Minister from detaining the applicant in any immigration detention centre. 51 Ordinarily where there has been no hearing on the merits and the parties no longer wish to proceed with the action, no orders as to costs will be made: L & A Maglio Pty Ltd v Commissioner of Taxation [2007] FCA 1365 at [24]. This applies so long as the parties have continued to act reasonably in prosecuting or defending their application: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 per McHugh J at 624- 625. 52 The applicant submits that he acted reasonably in initiating the original proceedings in this Court and that the respondent has acted unreasonably by: (1) Defending the application and the proceedings for the Notice of Motion to restrain the respondent from detaining the applicant in immigration detention; (2) Failing to settle the proceedings by issuing the applicant with a visa shortly after his release in August 2003 and thereby causing a delay in the final hearing; and (3) Delaying the matter during the period of 6 August 2003-18 October 2007.

Applicant's application for access to legal and educational facilities 53 As noted by French J in WAKX (No 2) at [8], the applicant's original application, on the face of it, did not disclose either the nature of the final or interlocutory relief sought or a legal basis for any relief. 54 It is not suggested in the applicant's submissions that the respondent acted unreasonably in defending the initial proceedings. The respondent contends that the applicant's initial claims lacked merit, however, this is not a matter where the Court should seek to resolve the issue of costs by engaging in something in the nature of a hypothetical trial: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201. 55 The applicant's claims in the original application were rendered futile by the applicant's release from detention and were ultimately abandoned by the applicant. There should be no order as to costs in respect of the original application.

Applicant's amended application for mandamus and release from detention 56 As foreshadowed in the applicant's minute of proposed order dated 6 June 2003, the applicant filed an amended application on 26 June 2003. The primary relief sought by the applicant was an order in the nature of mandamus requiring the respondent to remove the applicant from Australia to India within a time to be specified. An order in those terms was never seriously pursued by the applicant who sought principally an order, in the terms of the applicant's notice of motion filed on 26 June 2006, that the respondent be restrained from continuing to detain the applicant in immigration detention. 57 The respondent acted reasonably in opposing the applicant's application for an order that the applicant be released from immigration detention. Following the order made by Lee J on 6 August 2003 releasing the applicant from detention, it was reasonable for the parties to await the outcome of the proceedings in the High Court which raised similar issues before proceeding to trial. The respondent also acted reasonably in filing a motion on 17 September 2004 seeking discharge of the order made by Lee J on 6 August 2003, following the High Court judgments in Al-Kateb and Al Khafaji. 58 I do not accept the applicant's submissions that it was unreasonable for the respondent to have opposed the applicant's interlocutory application for release from detention. The respondent's position was that the applicant was required to be detained pursuant to ss 189 and 196(1) of the Act, even if (which was denied) his removal from Australia was not reasonably practicable in the foreseeable future. The respondent's position was upheld by the High Court in Al-Kateb and Al Khafaji. 59 The applicant submits that this case can be distinguished from Al-Kateb and Al Khafaji as there is no evidence in this case that there have been active attempts by the respondent to remove the applicant from Australia since his release from immigration detention in August 2003. He submits that continued efforts to effect deportation are a condition precedent to his lawful detention in circumstances where the detainee cannot immediately be removed from Australia. I am not prepared to make the findings of fact necessary to support this submission. It would be wasteful of resources where the litigation is at an end to try these issues in order to determine the question of costs. 60 The grant of interlocutory relief by Lee J on 6 August 2003 is not warrant for an order for costs in favour of the applicant. Lee J's conclusion that there was an arguable case that continued detention of the applicant did not meet the purposes of the Act was based on the Full Court decision in Al Masri which was disapproved by the High Court in Al-Kateb and Al Khafaji. Accordingly it cannot be inferred from the fact that interlocutory relief was granted that the applicant was almost certain or even likely to have succeeded if the application was fully tried. 61 Indeed, if anything, having regard to the judgments in AI-Kateb and Al Khafaji, it is open to conclude that the applicant's application for an injunction to prevent his detention would ultimately have failed if the matter had proceeded to final hearing. 62 This is supported by the fact that the applicant, following the High Court's decisions, filed a minute of proposed further amended application on 6 December 2004 in which he did not challenge that he was required to be detained under the Act, but only sought to restrain the respondent from detaining him in an immigration detention centre. 63 The applicant, in effect, abandoned his claim for an injunction preventing his detention, well before the proceedings were rendered futile by the respondent's grant of a visa. In the circumstances, there should be no order as to costs in favour of the applicant in respect of his amended application. 64 Nonetheless I am not prepared to hypothesise as to what the final outcome would have been. I would make no order as to costs in this respect.

Applicant's further amended application for mandamus and an injunction restraining the respondent from detaining him in any immigration detention centre 65 Although the matter was listed and ready for hearing on 31 August 2005, the applicant's further (and final) amended application did not proceed to trial as the parties waited for a decision by the respondent whether to grant a visa to the applicant. Once granted, the proceedings would have been rendered futile. The proceedings were in fact formally dismissed prior to the grant of the visa, but in the circumstances where the grant of a bridging (removal pending) visa had earlier been foreshadowed. 66 I accept the respondent's submission that, in the absence of a hearing on the merits, there should be no orders to costs in respect of the applicant's further amended application, in accordance with the principles established by McHugh J in Ex parte Lai Qin (1997) 186 CLR 622 at 624-625. It was not reasonable for the respondent to oppose the application. Once again, it is not appropriate for the Court to try a hypothetical action between the parties. 67 The applicant's claim for costs is made principally on the basis that the respondent acted unreasonably in not granting a visa to the applicant earlier. 68 I do not consider that the timeliness of the respondent's decision to grant a visa to the applicant is relevant to the determination of costs in this matter. The respondent had a non-compellable discretion whether to grant a visa to the applicant and was under no obligation to grant a visa or even to consider whether to exercise the power: see ss 195A(4) and 417(7) of the Act. 69 In Ex parte Lai Qin, McHugh J rejected an application for costs on behalf of the prosecutrix who had been granted a protection visa by the respondent under s 417 of the Act prior to the hearing of her application. His Honour stated, at 628: If the action had gone on for hearing and the Minister had afterwards granted a visa, it is impossible to suggest that he should pay the costs of the proceedings merely because during the proceedings he was reconsidering his earlier decision. 70 I do not accept, as the applicant submits, that the respondent was responsible for the prolonged nature of the proceedings. It seems that the applicant elected not to proceed to trial, but rather to wait a decision from the respondent whether to grant a visa to the applicant. This was not unreasonable. The applicant was given no assurance that he could expect a favourable outcome from the respondent on the question of a visa. 71 The consideration of the matter by the respondent took longer than anticipated by the applicant, is not a basis for an award of costs in favour of the applicant. 72 The applicant's submissions also invite the Court to compare the respondent's treatment of the applicant with other persons, the details of which are not in evidence before this Court. Those submissions carry no weight. 73 There should be no order as to costs in respect of the applicant's further amended application.

Costs on applicant's application for costs 74 The respondent submits that as the application for costs was brought for the benefit of the applicant's counsel under Order 80 and not the applicant, the Court should give consideration to the making of an order that the applicant's counsel personally pay the respondent's costs. I do not consider that course to be warranted. The applicant should pay the respondent's costs in relation to the applicant's application for costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 16 September 2008 Counsel for the Applicant: Dr J L Cameron

Solicitor for the Respondent: Australian Government Solicitor

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