Federal Court of Australia

Brownlie v Commonwealth [2023] FCA 435

ORDERS

THE COURT ORDERS THAT:

1.    There be no order as to the costs of the habeas corpus proceedings.

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

REASONS FOR JUDGMENT

FEUTRILL J:

1    These reasons concern the costs of originating proceedings the applicant brought against the first respondent (Commonwealth) and the second respondent (Minister) (collectively, respondents) for the issue of a writ of habeas corpus against the respondents or for relief in the form of such a writ to bring about the release of the applicant from immigration detention. After the proceedings were commenced, the applicant was released from detention and the applicant was granted leave to discontinue the proceedings. The respondents submitted that it is appropriate that there be no order as to costs. The applicant submitted that the respondents should pay his costs of the proceedings. For the reasons which follow, there will be no order as to the costs of the proceedings.

2    The applicant is a citizen of the United Kingdom. He was born in Wales and arrived in Australia in 1984 with his family at the age of three. Since arriving in Australia, the applicant has not departed Australia, nor obtained Australian citizenship.

3    The applicant has a fairly extensive criminal history dating back to when he was a juvenile. In August 2018 he breached the terms of a Drug Treatment Order and was re-sentenced to serve the unexpired term of 263 days of imprisonment. This prompted the mandatory cancellation of his Class BF transitional (permanent) visa under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he had a substantial criminal record within the meaning of s 501(6)(a) as he had been sentence to a term of imprisonment of more than 12 months: s 501(7)(c). The applicant was informed of the mandatory cancellation on 20 February 2019.

4    As a consequence of the cancellation of his visa, the applicant fell within the definition of an unlawful non-citizen in the Act. In accordance with s 189(1) of the Act if an officer (as defined in s 5) knows or reasonably suspects that a person is an unlawful non-citizen, the officer must detain the person. In May 2019, after completing his term of imprisonment, the applicant was released from prison and taken into immigration detention.

5    In accordance with an invitation of the Minister under s 501CA(3) of the Act, the applicant made representations to the Minister regarding revocation of the decision to cancel his visa. On 3 March 2021, a delegate of the Minister notified the applicant that the decision not to revoke the cancellation of his visa was upheld. On 8 March 2021, the applicant submitted to the Administrative Appeals Tribunal an application for review of the decision of the delegate. The delegate’s decision was affirmed by the Tribunal on 26 May 2021 and the applicant filed an application for judicial review of the Tribunal’s decision in the Federal Court under s 476A of the Act on 25 June 2021.

6    The applicant’s application for judicial review was listed for hearing before me on 3 June 2022. At that hearing, I drew to the attention of counsel for the applicant and the Minister certain documents in the Court Book which appeared to indicate that the applicant may be of indigenous heritage and may identify as an Aboriginal person. Thereafter, by agreement, the hearing was adjourned. The applicant subsequently amended the grounds of review to include a ground in which it was asserted, in effect, that the Tribunal had failed to give proper consideration to the strength, nature and duration of the applicant's links to the Australian community as an Aboriginal person. The amended application was heard on 9 August 2022 and is the subject of separate reasons.

7    In the meantime, on 6 June 2022, the applicant (as plaintiff) filed an originating summons in the Supreme Court of Victoria for a writ of habeas corpus ad subiciedum. The Commonwealth and the Minister were defendants to that summons. On 8 June 2022, the applicant affirmed and filed an affidavit in the habeas corpus proceedings in which he deposed certain facts pertaining to his indigenous heritage and identification as an Aboriginal person. In that affidavit he deposed that he is descended from and identifies as Aboriginal man of the Gunditjamara clan and Kurnai and Yorta Yorta people with a spiritual connection to the traditional lands of those peoples. He also provides an explanation for the reasons that he did not identify his Aboriginality in the representations he made to the Minister about revocation of the cancellation of his visa.

8    On 9 June 2022, McDonald J made an order pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) by which the habeas corpus proceedings were transferred to this Court. On 10 June 2022, the applicant was released from immigration detention. On 9 August 2022, I granted the applicant leave to discontinue the habeas corpus proceedings.

9    Section 53 of the Federal Court of Australia Act 1976 (Cth) confers a discretionary power on the Court to make a costs order. The power is usually exercised after a hearing on the merits and, as a general rule, the successful party is entitled to a favourable costs order. Success in the proceedings or on particular issues usually controls the exercise of the discretion. However, where, as here, there has not been a hearing on the merits the factor that usually determines how the discretion is exercised is absent. In these circumstances, McHugh J said in Re Minister for Immigration and Ethnic Affairs; Ex-parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-625 (most footnotes omitted):

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, 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. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. 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 [See, eg, Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; Seventh Mingcourt Pty Ltd v Lawrence (unreported; Federal Court of Australia; 1 August 1996), per Branson J; Coleman v City of Melville (unreported; Supreme Court of WA; 22 September 1994), per Scott J; Compadres Australia Pty Ltd v Waterfront Place No 2 Pty Ltd (unreported; Supreme Court of Q; 15 August 1995), per MacKenzie J; Inprint Ltd v K & D Media Pty Ltd (unreported; Federal Court of Australia; 22 December 1995), per Einfeld J; Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772.]

10    As McHugh observed in Lai Qin (at 625), the critical question in this case is whether or not the applicant acted reasonably in bringing the proceedings and whether the respondents acted so unreasonably in not releasing the applicant from detention before 6 June 2023 or 8 June 2023 when the applicant filed his affidavit in the proceedings.

11    This Court has an undoubted power to grant relief in the nature of a writ of habeas corpus. Historically, a writ of habeas corpus was a procedural writ the object of which was to enforce a legal right. It was a writ of right not as of course in that proper grounds for the issue of the writ had to be demonstrated. It was necessary for the applicant to demonstrate reasonable justification or probable cause and, thereby, the detainer was required to justify the detention by proving its lawful character. In this Court, which does not have the order nisi and order absolute procedure, the applicant for the writ nonetheless must discharge an initial evidential burden reflecting the order nisi origin of the writ before the burden of proof shifts to the detainer to justify the lawfulness of the detention: see, e.g., McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 at [2], [3], [20], [21], [53]-[62] (Allsop CJ), [76], [77], [87]-[100] (Besanko J), [188]-[214], [267]-[285] (Mortimer J as her Honour then was). The burden of proof of the detainer is to prove the lawfulness of the detention at the time the application for the writ is heard.

12    The applicant clearly acted reasonably in applying for a writ of habeas corpus. Although he apparently fell within the meaning of an unlawful non-citizen after his visa was cancelled, it is beyond the legislative competence to treat an Aboriginal Australian as a non-citizen. Thus, s 189 of the Act cannot apply to an Aboriginal Australian: McHugh at [28]-[29]. The facts deposed in the applicant’s affidavit of 8 June 2022 were sufficient to discharge the evidential burden of shifting the onus to the respondents to require them to prove the lawfulness of the applicant’s detention.

13    Counsel for the applicant submitted, in effect, that the respondents had acted unreasonably because those acting for the applicant had established in a matter of hours that the applicant was an Aboriginal person whereas the respondents had failed to do so for three years. These submissions appear, in my view, to miss the point. The relevant question is whether the respondents acted unreasonably so as to require the applicant to commence the habeas corpus proceedings in order to secure his release from detention. It is not a question of whether the respondents acted unreasonably in detaining the applicant. That detention was either lawful or unlawful in accordance with s 189 of the Act. If unlawful, the applicant may have other rights and remedies against the respondents. However, the purpose of the writ of habeas corpus is to secure the liberty of the prisoner at the time the detainer is called upon to justify the prisoner’s detention. The purpose of the writ is not to enquire into the lawfulness of past conduct except to the extent that conduct is relevant to question of whether the detention is lawful at the time of the hearing. Therefore, the real question is whether the respondents acted unreasonably, after becoming aware that the applicant was asserting that he was an Aboriginal person and unlawfully detained, so as to require the applicant to commence the habeas corpus proceedings to secure his release from detention.

14    The respondents’ solicitors wrote to the applicant’s legal representatives by email on 3 June 2022 at 2:37pm and requested, in substance, that the applicant provide them with an opportunity to review the claim that the applicant was an Aboriginal Australian before any litigation was commenced. It appears the applicant filed his summons in the Supreme Court of Victoria after the registry had closed on 3 June 2022 (Friday) as there is an email from his legal representative to the Supreme Court at about 5:33pm on 3 June 2022. The summons appears to have been taken to have been filed on 6 June 2022 (the next business day, Monday). It is not clear if the email sent to the applicant’s solicitors records the time as AWST or AEST. In either case, it was sent before the applicant commenced the habeas corpus proceedings. The applicant was released on 10 June 2022. In my view, the conduct of the respondents was not unreasonable the circumstances.

15    I am not satisfied that it was the conduct of the respondents, after the question of the applicant’s Aboriginality was raised at the hearing on 3 June 2022, that resulted in a need for the applicant to commence the habeas corpus proceedings. As noted earlier, it was the Court who drew counsels’ attention to the issue. It was not raised by counsel or the solicitor for the applicant or the applicant himself. After the issue was raised it appears that the applicant immediately commenced the habeas corpus proceedings before the respondents had an opportunity to consider if the applicant should be released voluntarily.

16    In any event, the power of detention under s 189(1) of the Act turns on a state of mind; knowledge or reasonable suspicion. There is no evidence to suggest that the detaining officer unreasonably formed the required state of mind before detaining the applicant or unreasonably continued to hold that state of mind up to 10 June 2022. There is no evidence that the detaining officer failed to form the required state of mind before detaining and maintaining the applicant in detention.

17    Although the respondents made no formal concessions at the hearing, to contest the proceedings would, no doubt, have required the respondents to conduct further investigations, collate evidence, retain solicitors and counsel and make submissions for the purposes of justifying the applicant’s detention. In taking all these steps the respondents would have incurred legal costs. Taking those steps would also have resulted in the applicant potentially incurring costs to prosecute the proceedings. A contested hearing would also utilise public resources. The respondents conduct appears to me to be consistent with their obligations and those of their legal representatives under ss 37M and 37N of the Federal Court Act. Further, it would be antithetical to the object of the civil practice and procedure provisions to discourage parties from taking voluntary steps to relieve the Court of the necessity of determining the merits of an application by awarding costs against that party when no admission or concession has been made about the merits.

18    There will be no order as to the costs of the habeas corpus proceedings.

Associate:

Dated:    10 May 2023