Federal Court of Australia

Bowman v Commonwealth of Australia [2022] FCA 594

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed, without adjudication on the merits.

2.    Each party bear their own costs of the proceeding, including any reserved costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

Background and summary

1    In this proceeding there had been a final hearing, and subsequent final written submissions filed, with judgment then reserved. After those events, the applicant’s visa cancellation was revoked, and therefore the factual basis for his challenges in this proceeding to his immigration detention and the respondents’ failure to remove him from Australia no longer existed. The parties have not been able to agree on appropriate orders for the disposition of the proceeding, nor on appropriate costs orders.

2    The factual narrative that lies behind the proceeding is not in dispute. The applicant, whose real name has been protected by a pseudonym, was born in a refugee camp on the Thai-Cambodian border in 1980. He arrived in Australia in June 1996 as the holder of a child migrant visa (Class AH Subclass 101). He has had numerous periods of homelessness and, since 1998, has amassed a record of more than 160 convictions. He has been diagnosed with significant psychological issues and has developed a drug addiction. The applicant’s visa was mandatorily cancelled on 4 August 2017, after the applicant was convicted and sentenced for an aggregate of 12 months’ imprisonment for various offences, including violent offences. Following the cancellation of his visa, the applicant was detained in immigration detention, where he remained until January 2022.

3    On 10 May 2018, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused the applicant’s request to revoke the cancellation of his visa. The applicant applied to the Administrative Appeals Tribunal for a merits review of the delegate’s decision. The Tribunal affirmed the refusal on 1 August 2018, but on 12 March 2019 the applicant succeeded in an application for judicial review of the Tribunal’s decision by this Court. The Tribunal was ordered to conduct the review again according to law.

4    That merits review remained undetermined at the time the applicant commenced proceedings about his immigration detention.

5    On 28 March 2021, the applicant filed a summons in the Supreme Court of Victoria against the Commonwealth of Australia and the Minister for Home Affairs seeking the grant of a writ of habeas corpus ad subjiciendum under r 57.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Three days later, after hearing from the parties as to the jurisdiction of the Supreme Court, the Federal Circuit Court (as it then was) and the Federal Court of Australia, Croucher J made an order under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) to transfer the proceeding to the Federal Court. The applicant did not oppose the making of this order, but he also did not concede that the Federal Court had jurisdiction in his application.

6    On 23 June 2021, the High Court of Australia delivered judgment in Commonwealth of Australia v AJL20 [2021] HCA 21; 391 ALR 562, in which a majority held that the detention of an unlawful non-citizen under s 189(1) of the Migration Act 1958 (Cth) is authorised and required until the occurrence of one of the events contemplated in s 196(1) of the Act, such as the non-citizen’s removal from Australia or the grant of a visa. The majority found that a delay in the occurrence of one of those events in s 196(1) does not found an application for an order in the nature of habeas corpus, but that the appropriate remedy is an order in the nature of mandamus to compel performance of any duty arising under the Act, such as the duty to remove a person expressed variously in s 198: AJL20 at [33]-[37], [49]-[52]. In light of the High Court’s decision, on 2 July 2021 the applicant in the present proceeding amended his originating application in this Court to seek an order in the nature of mandamus to compel his removal to a safe third country, as well as an order in the nature of habeas corpus. The applicant also sought an interim order in the nature of mandamus to require that he be transferred from an immigration detention centre to a private residence, to remain detained there until his removal. A similar order would later be made by Rangiah J in AZC20 v Minister for Home Affairs [2021] FCA 1234 on 13 October 2021.

7    On 15 July 2021, the respondents filed a notice of objection to competency with respect to the Court’s jurisdiction to hear and determine the applicant’s mandamus application. The objection was advanced on the basis that the Court’s jurisdiction was excluded by s 476A(1) of the Migration Act. The respondents’ representatives informed the applicant’s representatives that, if the applicant were to file his application in the (then) Federal Circuit Court, the respondents would consent to an order to transfer the proceeding back to the Federal Court. By his lawyers, the applicant rejected the respondents’ proposal. Accordingly, the Court made timetabling orders to list the proceeding for hearing in October 2021.

8    For reasons delivered ex tempore, Kerr J accepted an application by the respondents for the adjournment of the hearing to November 2021. This adjournment was made because, shortly before the hearing was scheduled to occur, the applicant filed further submissions and affidavit material, supposedly in reply to the respondents’ submissions and evidence. Before Kerr J, the respondents successfully argued that the further submissions and affidavit material raised new issues, and procedural fairness required that they be afforded the opportunity to consider and respond to these further submissions and affidavit material.

9    The proceeding was transferred to my docket, and was heard by me over one and a half days in November 2021. The parties filed written submissions and concise statements ahead of the hearing, and further written submissions after the conclusion of the hearing. Significant time was devoted during the hearing to the appropriateness of an application to compel the applicant’s removal in circumstances where he had an active merits review proceeding before the Tribunal.

10    Judgment in this proceeding was reserved on 6 December 2021, after receipt of the applicant’s final written submissions in reply.

11    However, the merits review before the Tribunal had proceeded, and on 19 January 2022, the Deputy President of the Tribunal decided to set aside the delegate’s decision not to revoke the visa cancellation and to substitute a decision to revoke the mandatory cancellation of the applicant’s child migrant visa. His visa restored, the applicant left immigration detention the same day.

12    From this point, the parties both accept that the relief sought by the applicant in this proceeding was of no utility. They have been unable to agree on appropriate orders for what should happen next. They filed competing submissions on how the proceeding should be disposed of. Final reply submissions were received on 10 May 2022. The applicant submitted that the Court should order the proceeding permanently stayed, without making any order as to costs. The respondents submitted that the Court should order that the proceeding be dismissed and that the applicant pay the respondents’ costs.

13    One further matter to note is that an appeal by the Minister in AZC20 was successful. On 5 April 2022, Rangiah J’s mandamus order, and his Honour’s orders concerning AZC20’s detention at a private residence, were set aside: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52 (AZC20 FC).

14    For the reasons that follow, the proceeding will be dismissed, and each party should bear their own costs.

The appropriate disposition of the proceeding

Submissions

15    In the applicant’s submission, the Court should not dismiss this proceeding because doing so might incorrectly suggest that the applicant has been unsuccessful in pursuing his relief. The applicant submitted that this Court has permanently stayed public law proceedings that have become moot in order to avoid a potential misrepresentation of outcome, citing La Roche v Cormack [1991] FCA 917; 33 FCR 414.

16    The applicant in La Roche sought judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to appointments made to two temporary positions for which he had been an unsuccessful applicant. By the time the case proceeded to trial, around four months after the application had been filed, the term of the temporary positions was about to expire. Since the only relief that the Court could grant the applicant would have required the reconsideration of an appeal that he had made in respect of the appointments, a process that would have taken some time, there could have been little or no practical benefit to the Court determining the judicial review application. The position to which the applicant sought appointment would have ceased to exist by the time his appeal had been reconsidered. On the day of the trial, Olney J ordered that the proceeding be permanently stayed. His Honour did this to avoid the suggestion that the applicant had been unsuccessful in pursuing his relief. Olney J considered this appropriate because the futility of the applicant’s case had not been caused by the conduct of the parties, although his Honour noted that, well before the day of hearing, the parties must have been aware that the Court’s decision could have little or no benefit for the applicant. In Gould v Deputy Commissioner of Taxation [2010] FCA 1489 at [12]-[13], Perram J referred to Olney J’s reasoning as authority for the Court’s power to permanently stay a proceeding that has been rendered futile by the passage of time or events extraneous to the parties.

17    In the present proceeding, the respondents submitted that dismissal was the more appropriate outcome, because the applicant’s case could not have been successful in this Court. The respondents submitted that the High Court’s decision in AJL20 meant that the applicant’s habeas corpus application could not succeed in this Court, a matter that the applicant had accepted in written submissions filed in this proceeding. Further, because the reinstatement of the applicant’s visa meant that the applicant was no longer an unlawful non-citizen and was accordingly released from detention, the respondents submitted that there could be no duty on the Minister to remove the applicant from Australia, and thus the applicant’s mandamus application must fail. The respondents also submitted that the decision of the Full Court of the Federal Court in AZC20 FC meant that the application for an order requiring private residential detention in the present case was also doomed to failure. The respondents sought to distinguish the decision in La Roche on the basis that the determination of the issues in dispute in that case was rendered moot by the upcoming expiry of the temporary employment positions, but it nevertheless would have been possible for the Court to rule in favour of the applicant. In the present case the reinstatement of the applicant’s visa has made it impossible for the Court grant relief in favour of the applicant.

18    In reply, the applicant submitted that his habeas corpus application was maintained in this Court in order to adduce evidence that could be relied on in support of a potential High Court application for habeas corpus involving an argument that AJL20 should be overturned, a practice the applicant described as “commonplace”. The applicant submitted that the Full Court’s decision in AZC20 FC is subject to an application to the High Court for special leave to appeal.

Resolution

19    The possibility that the applicant would succeed in his merits review and have his visa restored was a matter squarely raised by the Court with counsel for the applicant at the November 2021 hearing. Counsel for the applicant submitted that possibility should not impede the hearing and determination of the arguments made on the application.

20    With the restoration of his visa, not alleged by the applicant to be for an improper purpose or otherwise to be colourable, the applicant is now a lawful non-citizen. There is no duty to remove him arising under the Migration Act, s 198 being cast only in terms of non-citizens who do not hold a visa that is in effect: see s 198, read with s 13 and s 14. The applicant is no longer in immigration detention and he cannot be detained for so long as he holds a visa that is in effect. The relief which he seeks in this proceeding – an order in the nature of habeas corpus, mandamus compelling his removal, alternative detention arrangements – has no utility. The proceeding therefore has no utility.

21    No truly “external event” is responsible for this situation. The applicant applied for merits review of the decision not to revoke his visa cancellation. The applicant succeeded in persuading the Tribunal the visa cancellation should be revoked. The applicant and his legal representatives were at all material times aware that this was a possible development. By his application for merits review to the Tribunal, it was a development the applicant positively sought.

22    The Minister is correct to submit that this situation can be distinguished from the circumstances in La Roche and Gould. The circumstances in La Roche and Gould were quite different.

23    In the former, the effluxion of time meant even if the applicant succeeded, he would not secure any useful relief because the positions he sought to be reconsidered for were about to expire, and were not going to exist or be funded to continue. However, Olney J did not wish to visit on the applicant the apparently negative inference that arises from a dismissal of a proceeding.

24    In the latter, the Commissioner for Taxation had decided to remit the penalties Mr Gould had paid and sought to challenge, although at the time of Perram J’s decision the penalties had not in fact been remitted. That may well be why Perram J considered a stay was appropriate.

25    In its legal effect, a permanent stay preserves the existence of a proceeding. At least in principle there is a possibility – however remote – that it might be revived. That is, a stay recognises there might still be a matter to be determined. Even if that might be said to have been the case in both La Roche and Gould, it is not the case here. The applicant has a visa that is in effect: the “matter” between him and the respondents, as alleged in the current proceeding, no longer exists. If the applicant’s visa expires, or is cancelled, and he is detained again, his circumstances may give rise to a new matter between the parties. That might result in a new proceeding, with different material facts. New legal arguments might be put, of the kind to which the applicant refers in his written submissions – arguments about the correctness of existing High Court authority, and about the correctness of the Full Court’s decision in AZC20 FC. Those will be new arguments based on new material facts.

26    As the Minister submits, this entire controversy could have been avoided by the applicant’s lawyers filing a notice of discontinuance on his behalf, and then seeking an alternative order in respect of costs to the one prescribed by r 26.12(7) of the Federal Court Rules 2011 (Cth). In something of a pattern established in this proceeding, including its origins in the Victorian Supreme Court, the applicant’s legal representatives seem determined to take the most difficult legal road, rather than the most straightforward one.

27    The submissions of the applicant’s legal representatives on appropriate substantive orders should be rejected. Since the applicant has elected, I infer on legal advice, not to file a notice of discontinuance, the appropriate order is for the proceedings to be dismissed. If the applicant is detained in the future because he becomes an unlawful non-citizen, there will be new material facts and it is difficult to see how any estoppel arguments could reasonably be raised against him. Out of an abundance of caution, it is appropriate in this case that the words “without adjudication on the merits” be added to the order dismissing the proceeding.

Costs

Submissions

28    The applicant submitted that, irrespective of whether the Court permanently stays the proceeding or dismisses it, there should be no order as to costs because no party succeeded or failed before judgment was entered. The applicant referred to the decision of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 not to make an order as to costs in a High Court proceeding for judicial review of a tribunal decision.

29    The tribunal decision in that proceeding affirmed a ministerial decision not to grant an application for a protection visa. After the applicant commenced the judicial review, the responsible Minister decided to grant her a protection visa under a discretionary statutory power. This rendered the judicial review application futile. McHugh J decided not to award costs to either party, and observed (at 625) that a costs order would not usually be appropriate where parties have acted reasonably in commencing and defending the proceedings and their conduct had continued to be reasonable until the litigation was settled or its further prosecution became futile. His Honour held there were two exceptions: costs should be awarded against a party who has acted unreasonably, and costs should be awarded in favour of a party who almost certainly would have succeeded if the matter had fully been tried.

30    McHugh J’s obiter dicta were applied and followed in Grant v Secretary of Department of Home Affairs [2022] FCA 261. The applicant in Grant sought similar relief to the present applicant: namely mandamus to compel his removal, and in the interim, orders for detention in a private residence. In other words, Grant was another proceeding picking up on the orders made by Rangiah J in AZC20.

31    The Court ordered the Secretary of the Department of Home Affairs to pay the costs of the applicant because, after the proceeding was heard and judgment reserved, but before judgment had been delivered, the responsible Minister had granted the applicant a visa under s 195A of the Migration Act. Section 195A confers a personal and non-compellable power on the responsible Minister to grant a person a visa, if the Minister thinks it is in the public interest to do so. The Court considered that it was appropriate to order costs against the Secretary because, by the time the applicant was granted a visa, although the Court’s judgment was reserved, the Court had in fact decided the applicant would succeed, albeit that the orders and reasons had not yet been entered: see Grant at [19]-[23]. In other words, the second exception identified by McHugh J applied. The Court found that the relief sought by the applicant in the proceeding was different to the outcome he obtained with the grant of a visa under s 195A, although the proceeding was nevertheless directed at securing his liberty, being the objective ultimately achieved by the grant of the visa: Grant at [24].

32    The applicant in the present proceeding submitted further that, even if the Court were to assume that his application was bound to fail, the default position is that the Court should not order costs in relation to a failed challenge to executive detention. The applicant contended the following authorities supported the proposition that a relevant factor in the exercise of the Court’s costs discretion is whether making a costs order would deter persons detained from seeking their liberty: Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60; Cabal v United Mexican States (No 6) [2000] FCA 651; 174 ALR 747 at [22]; Te v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 15; 204 ALR 497 at [74]-[81]; United States of America v Griffiths [2004] FCA 895 at [2]-[3]; DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793 at [23(a)]-[23(b)]; MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 559; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194 (MB (FC)) at [19], [27], [28].

33    Finally, the applicant submitted that his case could not have been described as speculative or without proper basis. The applicant referred to his lengthy oral and written submissions regarding his case on jurisdiction and relief by way of habeas corpus, mandamus and private residential detention. He submitted that it was unusual that two of the core elements of his application were supported by an authority that was overruled after his application was filed: namely, AJL20 and AZC20. He also submitted that the proceeding in this Court had a proper basis notwithstanding the concurrent merits review application, because his detention was prolonged for an extraordinary length of time and caused him an unusual degree of suffering.

34    The respondents submitted that the applicant had acted unreasonably by bringing and maintaining the application for mandamus while the merits review proceeding was still current. The applicant had submitted in this Court that the merits review process was irrelevant for the purposes of his mandamus application. However, in the respondents’ submission, the merits review process was one of the main reasons for their opposition to an order in the nature of mandamus, and the relief eventually granted by the Tribunal is precisely the reason why the present proceeding was rendered futile. Moreover, the respondents submitted that the evidence and submissions in this Court had demonstrated that the applicant did not in fact want to be removed from Australia. On the whole, this made the prosecution of the application in this proceeding unreasonable.

35    Furthermore, the respondents submitted that it was unreasonable of the applicant to refuse to file his application in the (then) Federal Circuit Court and apply for orders, by consent, for the transfer of the proceeding back to this Court. In the respondents’ submission, the applicant’s position unnecessarily obliged the parties to make extensive written and oral submissions to the Court on jurisdiction. In reply, the applicant contended that there was a jurisdictional impediment to filing in the Federal Circuit Court that did not exist in this Court, and that it was reasonable for the applicant to proceed with his case in this Court after the Supreme Court of Victoria had ordered the transfer of the proceeding.

36    Finally, the respondents submitted that they were almost certain to succeed on a final determination of the application. As previously noted, the respondents submitted that the application for habeas corpus and residential detention orders was bound to fail. The respondents also submitted that the co-existence of the merits review process meant that the applicant’s case for mandamus was likewise doomed to failure.

37    In reply, the applicant reiterated that he had had good prospects of success in all of the components of his case at the time he filed the application. He also submitted that the respondents did not address why his merits review process had taken so long to complete, and suggested that the application in this Court had been filed in order to precipitate the determination of the merits review application.

Resolution

38    The respondents’ submissions have considerable force.

39    It can be accepted that, certainly at the commencement of the proceeding, the applicant had a foundation for his habeas corpus application, by reason of the first instance decision in AJL20, and subsequently he had a foundation for the amended relief sought by reason of the first instance decision in AZC20. Contrary to the thrust of the applicant’s submissions those propositions do not carry the weight they otherwise might.

40    That is because this proceeding had characteristics distinguishing it from a straightforward attempt to rely on those authorities. The most obvious characteristic was the applicant’s extant merits review proceeding. The merits review was capable of delivering the applicant a substantive positive outcome, and restoring his visa. As it turned out, that is what occurred. The existence and continuation of that proceeding was fundamentally inconsistent with the applicant’s mandamus application in obvious ways. I do not accept the applicant’s submissions to the contrary.

41    The respondents submitted (at [15] of their written submissions on the disposition of this proceeding):

The merits review in the Tribunal in relation to the revocation of cancellation was to be heard on 29 and 30 November 2021, being some 13 days after the final hearing in this matter on 16 and 17 November 2021. Despite seeking an order for his removal from Australia, the applicant had sought an in-person hearing before the Tribunal. Moreover, despite seeking an order for removal from Australia, the evidence before the Court made clear that the applicant did not consent to his removal and did not in fact want to be removed from Australia. So much was ultimately conceded on the second and final day of the hearing in this proceeding.

(Citations omitted.)

42    I accept that submission.

43    The second characteristic was the complicated and unnecessary debate about the original jurisdiction of this Court. I describe it in those terms without making final findings: see [46] below. It can be described in that way because the Minister had proactively proposed, and consented to, the proceeding being commenced in the (then) Federal Circuit Court and transferred to this Court. That is what occurred for example in the first application in AJL20, and the proposed process was precisely what occurred in AZC20; see AZC20 at [4]:

In an interlocutory application filed on 12 July 2021, the applicant proposed to amend his originating application in proceeding VID 89 of 2021 to seek a mandamus order. The respondents opposed the amendment on the basis that the Federal Court of Australia lacked jurisdiction to grant that relief. That impasse was broken by the applicant commencing a proceeding on 19 August 2021 for mandamus in the Federal Circuit Court of Australia and then having the proceeding transferred to the Federal Court as proceeding VID 503 of 2021 (the mandamus application).

(Original emphasis.)

44    Irrespective of whether there was any glimmer of technical legal hope in the applicant’s complicated jurisdiction contentions, those contentions required some departure from, or distinguishing of, the Court’s decision in Chamoun v Commonwealth of Australia [2021] FCA 740, and some considerable development beyond what was actually said by the Full Court in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 about this Court’s original jurisdiction to grant a writ of habeas corpus. They would have also required departure from the Full Court’s finding in AZC20 FC at [101]-[105] which may not go to jurisdiction, but is directly contrary to the applicant’s submissions about power to grant the relief he sought. An absence of power might have resulted in the arid exercise of any jurisdiction the applicant could persuade this Court it had. Whereas, not only was there ample existing authority for the jurisdiction of the (then) Federal Circuit Court in a cause of action of this kind, other proceedings had taken the course of starting in that court and being transferred to this Court, with the Minister’s agreement, and with nothing being said about any defect in jurisdiction preventing that approach being taken. It was a straightforward, cost effective and quick option to which the applicant’s legal representatives in this case appeared implacably opposed.

45    The circumstances in this proceeding are quite different from Grant, where the applicant ultimately received a visa by reason of an exercise of power under s 195A of the Migration Act. The exercise of a power such as that conferred by s 195A is, inherently, at the election of the responsible Minister. It is at the Minister’s election not only as to whether the power should be exercised to grant a visa, but the timing as to any such grant. A court can assume the Minister who, under applicable administrative arrangements, is responsible for the s 195A power will be fully and properly informed of any litigation on foot by an individual relating to either that person’s detention, or the grant of a visa to that person. Therefore, any election to grant a visa, and the decision about the timing of such a grant, is up to the Minister personally. It is not difficult to see that where there is litigation that is well advanced, and a Minister elects to grant a visa under s 195A and thereby remove the utility of an applicant’s proceeding, that conduct might bear on the exercise of the costs discretion. That is not this case. This is a case where the applicant secured the very outcome he had sought on merits review, and it was that outcome which rendered the present proceeding futile.

46    The circumstances I have described at [39]-[45] might be capable of justifying a conclusion that the applicant acted unreasonably in pursuing this proceeding to trial. The fact of an extant merits review application was a characteristic of this proceeding from the start. Why all energy, in terms of human and legal resources, was not put into that merits review, and that review alone, is difficult to understand. The commencement of a proceeding in the Supreme Court of Victoria rather than in a federal court, might be said to be legally creative, but all it did was result in delays, and the expenditure of human and legal resources, and public resources by the Supreme Court, with the applicant being no further advanced in the substance of his contentions when his case arrived in this Court. The express refusal of the applicant’s legal representatives to countenance, and accept the Minister’s sensible offer to consent to a transfer to this Court if a new proceeding were issued in the (then) Federal Circuit Court might be capable of being described as irresponsible. Why a much more complicated, and legally difficult route involving a lengthy contested hearing would be chosen and pressed in those circumstances is, at the very least, baffling. Why the fundamental incompatibilities between various aspects of the applicant’s case about removal and merits review could not be accepted, is also baffling.

47    Although the applicant’s written submissions expressly made assertions such as “[i]t is for the Applicant to determine his future, not for Australian bureaucrats nor policy-writers to place limits or value judgments on the Applicant and his future life choices”, at the time of trial, the applicant had at no time requested removal under s 198(1) of the Migration Act, a request which triggered a duty to comply with that request. The applicant’s detailed submissions about how he could have been removed by the respondents to Germany, and have a right of entry and residence for 90 days, suggest that with much less delay, and much less expenditure of resources, he could have made a s 198(1) request and purchased a one way ticket to Germany. Once that is stated, it becomes immediately apparent that entry into Germany might not be that simple, and the German authorities might have something to say about the applicant’s proposed entry, given his circumstances in Australia. All of which I set out only to emphasise that the applicant’s submissions, in very many respects, had an air of unreality and impracticability about them, which seemed to me to attend much of the way his case was advanced, and to some extent is responsible for the current dispute on relief and costs.

48    None of this is to gainsay some of the submissions made on behalf of the applicant that he had endured lengthy deprivation of his liberty, and had endured conditions of immigration detention, for a period of time that was affecting his mental health, and his prospects of recovery from drug addiction. The question is whether the forensic choices made about addressing that dilemma, through the commencement and continuation of this particular proceeding, with the characteristics I have described, were ones that were so unreasonable that the Court should find the respondents should be compensated for the costs incurred by reason of those forensic choices.

49    It should be clear from the opinions I have expressed to this point in these reasons, that my present impression is that the course of this proceeding, and its predecessor in the Victorian Supreme Court, is the responsibility of forensic choices made on behalf of the applicant by his legal representatives. The applicant’s legal representatives describe the applicant in the following way in written submissions (at [41] of the applicant’s final submissions in chief):

detained, has low intellectual function and is suffering significant mental illness and recurring physical illness requiring hospitalisation …

50    That is hardly the description of an individual who, personally, is at the forefront or centre of all of the complicated legal arguments put on his behalf, or the forensic choices made about which arguments to advance, or whether to accept procedural compromises or offers put by the respondents, or suggested by the Court. To say as much is not to suggest the applicant did not give instructions to his legal representatives, but it is to question whether, if that is how his own legal representatives describe the applicant, it is just and appropriate he be made personally liable for the respondents’ costs because of the allegedly unreasonable way in which his case has been conducted. As I explain below, the Tribunal gave similar descriptions of the applicant.

51    The parties appear to agree on at least one substantive matter: the applicant has had his Class AH Subclass 101 Child (Migrant) visa restored by the Tribunal’s decision on 19 January 2022, and is once again free in the Australian community, with secure migration status. This is a permanent visa: see cl 101.511 of Schedule 2 to the Migration Regulations 1994 (Cth). The applicant has a fresh chance to remain as a member of the Australian community. At [107] of its decision, annexed to the affidavit of R Khawaja filed and relied upon by the applicant on the disposition dispute, the Tribunal said:

In the current case, although I hold grave fears for the Applicant if he is released into the community, I am of the opinion that based on the evidence overall, particularly the evidence of Dr. Carroll who was the only independent expert, he should be given the opportunity for rehabilitation and for a life within the community, as opposed to the possibility of indefinite detention, especially given that he has already been in detention for a considerably longer period than any prison sentence he has received. The Applicant has served his time, as required by the Australian criminal justice system. The evidence is that his time in detention has not been to his benefit and will not be beneficial to him if it were to continue.

52    The Tribunal described the applicant in the following terms (at [73]):

In assessing the weight to be given to this consideration, I take into account the fact that the Applicant has, on any reasonable assessment, had a life of great hardship. Particularly as a young person, he needed help and support that has not [been] made available to him and certainly appears to have been a contributory factor to his drug and alcohol abuse. In fact, despite being described as a needy person, there is no evidence that his needs have ever been met, nor can there [be] any certainty that they will be met in the future. The Australian community, in my view, would take into account that a person in the Applicant’s position, especially given his mental impairment, would and should be given assistance.

53    The Tribunal also found (at [79]):

It is highly unlikely that the Applicant would ever be accepted by a third country, given his intellectual impairment, history of drug use and criminal history.

54    Finally, relevantly to the present matters, in its conclusions, the Tribunal found (at [102]-[104]):

The Applicant said that his time in detention had caused him to think deeply about his previous life and that he was now committed to remaining drug free and trying to develop his life in the Australian community. He will need significant support to do so, and on the basis of Dr. Carroll’s evidence it must be considered that there is at least a reasonable possibility that he will not receive all or some of the supports necessary. In particular, stable housing was seen as critical.

There is no evidence that the Applicant would be likely to benefit from spending further time in detention, particularly if he could see no end to it. Dr. Carrol[l]’s evidence was to the contrary.

Unfortunately, there does not appear to be any acceptance on the part of either state or federal government nor any third party of a duty of care to someone such as the Applicant in relation to ensuring access to services or taking positive steps towards their ultimate rehabilitation. Indefinite deprivation of liberty and the resulting uncertainty is likely to be further deleterious to the Applicant’s mental health.

55    It is clear from these passages that the Tribunal saw the applicant’s prospects for a rehabilitated life in Australia going forward as finely balanced, and susceptible to disruption if there was ongoing hardship, including I infer financial hardship, whether that manifested itself as unstable housing, a lack of access to support facilities, or in other ways.

56    Having formed the view that the conduct of this proceeding, from the outset, is capable of being characterised as (at least) unrealistic, unnecessarily complicated and contradictory, my real concern is whether it is just and appropriate to sheet home to the applicant, by way of a costs order, responsibility to compensate the respondents for their costs in responding to and dealing with all the baffling and counter-intuitive forensic choices made in this proceeding.

57    Having reflected carefully on the question, despite the baffling forensic choices made on behalf of the applicant in the course of this proceeding, I do not consider it is just and appropriate to make an order requiring the applicant personally to pay what will no doubt be a considerable sum in costs to the respondents, even on a lump sum basis.

58    There is no evidence at all that the applicant has the means to satisfy such an order, and all of the Tribunal’s findings, and the evidence before this Court, support an inference to the contrary. The Court should proceed on the basis that if the respondents seek a costs order, they may also seek to enforce it. Otherwise, the purpose for seeking a costs order might not be properly seen as compensatory but as punitive or as having some legally irrelevant purpose to the exercise of the costs discretion.

59    Enforcement of the order might well jeopardise the applicant’s prospects of successful rehabilitation as a member of the Australian community, being the very chance the Tribunal, acting as a branch of the executive, though independent of the executive itself, considered was the correct or preferable decision for his circumstances. Where the applicant is described as having the challenges he does at a personal level in managing his life, I do not propose to exercise the Court’s costs discretion in a way which would have a real prospect of undermining the (very recent) outcome the Tribunal considered to be appropriate.

60    It is understandable, and explicable, that if an individual in the applicant’s situation, having been detained for almost four years after completing an earlier term of imprisonment, was advised that there were prospects of him securing his liberty, even temporarily, they might accept that advice and instruct their legal representatives to commence such proceedings. At a general level, I accept that where the subject matter of a proceeding is an attempt by an individual to secure their liberty, that may be a factor relevant to the exercise of a costs discretion: Cabal at [22]; MB at [3]-[5], [21]; MB (FC) at [19]. It is a factor I take into account as confirming what I otherwise consider to be a just and appropriate exercise of the costs discretion.

61    Therefore, despite the force in the respondents’ submissions, and the views I have expressed, I consider the overall justice of the case requires each party to bear their own costs of the proceeding.

Orders as to jurisdiction

Submissions

62    In his submissions on the disposition of the proceeding, the applicant contended that the Court should make a ruling on the question of its jurisdiction to hear his case. The applicant submitted that the Court has had the benefit of detailed and considered submissions by the parties and that the question of the Court’s jurisdiction is of broad significance: citing AZC20 FC at [36], [44]. The applicant also submitted that, if the Court decided that it lacked jurisdiction to hear the application, the proceeding might have to be dismissed for want of jurisdiction: citing DBE17.

Resolution

63    The applicant’s submissions should be rejected. The relief sought in the proceeding having no utility, the proceeding itself therefore has no utility and the delivery of a decision on jurisdiction would amount to no more than an advisory opinion.

64    For similar reasons I consider it inappropriate to express any views about the likelihood the applicant may have succeeded, as part of my consideration of the costs discretion.

Conclusion

65    The proceeding will be dismissed, and there will be no order as to costs.

Associate:

Dated:    20 May 2022