Adamas v The Hon Brendan O'Connor

Bail 13 In the current proceedings there is no power to grant bail to the applicant pursuant to the Act because the power to grant bail is limited to s 15 and s 21 of the Act. Section 15 enables a magistrate to grant bail "for such period or periods as may be necessary for proceedings under section 18 or 19, or both, to be conducted". Section 21 enables bail to be granted pending a review or appeal of a decision made under s 19 of the Act but only until such time as the review or appeal is heard. 14 The current proceedings are bought pursuant to s 39B(1) and s 39B(1A) of the Judiciary Act 1903 (Cth) and ss 19, 21 and 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). 15 Section 23 of the FCA Act provides that: The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

Jurisdiction 16 The Minister submits that the Court in the present circumstances has no jurisdiction to grant bail pursuant to s 23 of the FCA Act because the Act, by implication, excludes such jurisdiction. I reject this submission. It was a submission put in Peniche v Vanstone (1999) 96 FCR 38 and rejected by Kenny J who stated the following at [29]: [29] It is, in the circumstances, unnecessary to decide whether the first respondent's alternative submission should be accepted. That was to the effect that the Act has excluded any power that the Court would otherwise have to grant relief in the nature of bail. The first respondent submitted that the regime established under the Act provided exhaustively for the occasions, from the time of his arrest under s 12 until the conclusion of any review and appeal under s 21 of the Act, upon which an extraditee might apply for release on bail. The Act denied, by implication, so the first respondent submitted, any power which the Court might otherwise have to make an order effecting release from custody imposed pursuant to s 15(2) of the Act. The applicant submitted in response that an application for bail in extradition proceedings is separate and distinct from an application for interlocutory relief under s 23 of the Federal Court of Australia Act, in respect of proceedings under s 39B of the Judiciary Act challenging the validity of steps taken in extradition proceedings. I accept that proposition. Without deciding the point, there is, I think, much to be said for the view that the provisions for remand on bail in the Act do not preclude the power of the court to entertain an application for an interlocutory injunction restraining a proper respondent from detaining an extraditee in custody in cases where the validity of decisions to arrest, or to remand in custody, or like decisions are the subject of challenge in judicial review proceedings: see, eg Hempel v Moore (1987) 13 FCR 480; 70 ALR 714; Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358; and Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471 at 472-3. As I have sought to show, that is not the situation in these proceedings. 17 Whilst obiter, her Honour's reasoned observations at [29] are persuasive and, indeed, were referred to with apparent approval by McKerracher J at first instance in Zentai v Honourable Brendan O'Connor [2009] FCA 1597 at [24]. I am far from satisfied that, as the Minister contends, his Honour's conclusion on that point is clearly wrong and should not be followed. I also respectfully adopt her Honour's views in this respect. 18 The applicant in Zentai, as with the applicant here, brought the application pursuant to s 39B(1) and (1A) of the Judiciary Act and ss 19, 21 and 23 of the FCA Act. The applicant in Zentai was released on bail, on specific conditions, pending the hearing and determination of his application for review and the warrants issued under ss 19 and 23 of the Act were stayed. 19 The primary challenge in Zentai, as here, was to a s 22 decision made by the same Minister. Bail under that ground was sought under s 23 of the FCA. Not only did the Minister not raise the jurisdictional issue which he now does in this case but he expressly did not oppose a grant of bail: Zentai at [55]. Senior counsel appearing before me in this application was unable to explain the inconsistent approaches adopted by the same Minister in two like cases. 20 However, the decision to grant bail in Zentai was based, in part, upon the nature of the relief sought which included a claim for Mr Zentai to be released. Indeed, McKerracher J in Zentai v Honourable Brendan O'Connor (No 4) [2010] FCA 1385 made orders including that: A writ of mandamus issue to the first respondent directing him: 4.1 To determine that the applicant not be surrendered to the Republic of Hungary in response to the Extradition Request of the Republic of Hungary dated 23 March 2005 concerning the applicant; and 4.2 To order the release of the applicant. 21 The question then turns not on a point of jurisdiction but rather whether the Court ought exercise the power, which in my view it has, to grant bail in these circumstances.

Discretion 22 McKerracher J in Zentai noted that in Chan v Minister for Justice and Customs (2001) 108 FCR 65 the Court declined to grant interlocutory relief pursuant to s 23 of the FCA Act releasing the applicant from custody, because the relief sought in that case would not have resulted in the release of the applicant from custody. In contrast, in Zentai, it was contended by the applicant that if two of the various grounds relied upon by him were successful, "it would not be open to the Minister to make a further determination under s 22 of the Extradition Act" [25]. The Full Court on appeal in O'Connor v Zentai (2011) 195 FCR 515, as I explain below, took a different view. 23 In the judgment I upheld two grounds of the application for review. The first was that, given the decision that the Minister made an error in not finding that the applicant's extradition would be unjust, oppressive or incompatible with humanitarian considerations and the second that the Minister's decision, in the exercise of his discretion not to refuse the surrender of the applicant, was so unreasonable as to constitute jurisdictional error. If the Minister is unsuccessful in his appeal then, at least arguably, it does not follow that the Full Court would order the applicant's release. Rather, I apprehend that, at most, the Full Court would order the Minister to make a determination under s 22 according to law and in light of its reasons for dismissing the appeal. Such was the approach of the Full Court in O'Connor v Zentai. 24 If that is correct then the rationale in Chan would be apt here and bail would be refused for that reason. However, it is unnecessary for me to resolve the bail application on that point because of the view I have taken upon the issue of 'special circumstances'.

Special circumstances 25 In order to grant bail in extradition proceedings special circumstances need to exist: Zentai at [23]. In United Mexican States v Cabal (2001) 209 CLR 165 at [60] Gleeson CJ, McHugh and Gummow JJ observed that the rationale for the requirement to establish special circumstances is that the "typical extraditee is a person who has fled from another country after committing a serious crime" and "granting bail to that person provides a further opportunity for him or her to flee from the reach of the extraditing country". 26 Their Honours at [61] held that in order for a grant of bail to be made in extradition cases, two conditions must be met: First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute "special circumstances", the matters relied on "need to be extraordinary and not factors applicable to all defendants facing extradition." Secondly, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. 27 Their Honours at [62], continued: Before a Federal Court judge grants bail, the defendant ordinarily will need to show that the application for review has strong prospects of success as well as special circumstances and an absence of risk of flight. In this case the applicant does not need to demonstrate strong prospects of success because his application for review has succeeded. His continued incarceration is a consequence of the Minister's decision to appeal. Nonetheless, it is common ground that, by implication, he still requires to establish special circumstances. 28 The applicant submits that special circumstances exist because his circumstances are different from the typical circumstances of persons facing extradition in that: (a) the applicant and his family moved to Australia from Indonesia in July 1999 prior to any charges being laid; (b) on 16 August 1999 a Certificate of Good Conduct was issued by the Indonesian National Police stating that the applicant had no criminal record and this certificate was issued at the request of the applicant for the purpose of travelling to Australia; (c) on 22 November 1999 the applicant informed the Indonesia Consular Office in Perth of his whereabouts and his residential address in Perth; (d) the applicant is not the 'typical' extraditee because he is not a fugitive; (e) the applicant has been living in Perth with his family since 1999 and has no criminal convictions in Australia; (f) the applicant does not pose any flight risk because it is clear that the applicant has never fled from justice and has lived in Australia without incident for over 12 years. He has close connections to Perth as his immediate family all reside in this state and he is an Australian citizen; and (g) he has been in custody for over 3 years. 29 None of these matters individually or in any combination, in my opinion, constitute special circumstances. They are for the most part relevant to whether the applicant poses a flight risk. However, they are not, in my opinion, such as to constitute special circumstances such as to overcome the presumption against bail, particularly at this late stage of the extradition proceedings. 30 I would, for this reason dismiss the application for bail.

Costs 31 In Zentai (No 4) at [71] it was held that: Ordinarily, absent a contrary statutory provision, costs follow the event and a successful litigant will receive his or her costs in the absence of special circumstances justifying some other order. (Citations omitted) 32 I consider that such circumstances exist. The Court has discretion under r 40.06 of the Federal Court Rules 2011 to apportion costs if any costs were improperly, unreasonably or negligently incurred. In this case, the applicant's grounds 1, 2, 5 and 6 were dismissed with the following findings: (a) Grounds 1 and 2 were misconceived in so far as the applicant contended that the Minister committed jurisdictional error by failing to take into account a relevant consideration; (b) Ground 5 was expressed in terms of "disregarding a relevant consideration", but the submissions were, in substance, an impermissible merits challenge; and (c) Ground 6 was a challenge to the merits of the Minister's determination. There was no "relevant consideration" in the Peko-Wallsend sense to which the Minister failed to have regard. 33 I consider, having regard to those findings that there ought be an apportionment of costs. The grounds upon which the applicant succeeded engaged the Court's consideration to a greater extent than the combination of grounds upon which the applicant did not succeed. An appropriate order then is to order the Minister to pay 50% of the applicant's costs of its application for review. There will be no order as to the costs of the application for bail even though the applicant was unsuccessful. Most of the hearing was taken up with argument on the jurisdictional issue upon which the Minister failed. The hearing, but for that fact, would have taken a relatively short time. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.