Adamas v The Honourable Brendan O'Connor

Federal Court of Australia|2012-03-15|Before: Gilmour J

ociation Inc v Minister for Natural Resources (2005) 138 LGERA 11 New Zealand v Moloney (2006) FCAFC 143 New Zealand v Venkataya (1995) 57 FCR 151 O'Connor v Zentai (2011) 195 FCR 515 O'Donoghue v The Honourable Brendan O'Connor (No 2) (2012) 283 ALR 682 Perry v Lean (1985) 63 ALR 407 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 R v Cornwell [1972] 2 NSWLR 1 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Date of hearing: 7 & 8 September 2011

Division: GENERAL DIVISION

Counsel for the Applicant: Mr G Donaldson (SC)

Solicitor for the Applicant: O'Connor Lawyers

Counsel for the First Respondent: Mr K Pettit (SC)

Solicitor for the First Respondent: Australian Government Solicitor

Solicitor for the Second Respondent: State Solicitors Office

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 407 of 2010

AND: THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS AND JUSTICE

IAN JOHNSON, THE COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES

JUDGE: GILMOUR J DATE OF ORDER: 15 March 2012 WHERE MADE: PERTH

The determination of the first respondent made on 17 December 2010 pursuant to s 22 of the Extradition Act 1988 (Cth) (the Act) that the applicant be surrendered for extradition to Indonesia be quashed.
The surrender warrant issued by the first respondent on 17 December 2010 under s 23 of the Act be quashed.
The parties have liberty to make submissions as to an application for the release of the applicant from custody as well as upon the question of costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 407 of 2010

AND: THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS AND JUSTICE

IAN JOHNSON, THE COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES

JUDGE: GILMOUR J DATE: 15 March 2012 PLACE: PERTH

The application 1 The applicant, an Australian citizen, seeks declaratory relief that a decision of the first respondent (Minister) made on 17 December 2010 pursuant to s 22 of the Extradition Act 1988 (Cth) (the Act) that the applicant may be surrendered for extradition to Indonesia (the s 22 decision) is void and of no legal effect. He also seeks relief in the nature of certiorari to quash the s 22 decision as well as the surrender warrant issued by the Minister on 17 December 2010 under s 23 of the Act. Related injunctive and consequential relief is also sought. 2 Relief is sought against the second respondent by way of an order that the applicant be released from custody.

Background 3 The applicant, formerly known as Adrian Kiki Ariawan, was sentenced in Indonesia to life imprisonment following his conviction in absentia on 13 November 2002 for the offence of corruption contrary to Art 1 para (1.a) Indonesian Law No 3 Year 1971 on Combating Corruption Crime. 4 The applicant was the President Director of Bank Surya in Indonesia at the time of the alleged criminal conduct (between 1989 and 1998) and his co-offender, Bambang Sutrisno, was the Vice President Commissioner of the Bank of Surya. The applicant and Sutrisno were convicted in 2002 in absentia by the Central Jakarta District Court of misusing bank funds for their own purposes, leading to serious liquidity problems for Bank Surya. They were then alleged to have engineered the extension of discount facilities to Bank Surya by the Indonesian Central Bank (Bank Indonesia), leading to extensive losses by Bank Indonesia and therefore Indonesian State finances. They were each sentenced in absentia to imprisonment for life. An appeal to which the applicant was joined by the prosecutor was brought by Mr Sutrisno without the applicant's knowledge. It was heard and later dismissed on 2 June 2003 by the Indonesian High Court. A Memo of Decision Execution Order was issued on 3 July 2003 and the applicant was then declared to be a fugitive. 5 On 28 November 2008 Indonesia made a formal extradition request to Australia for the surrender of the applicant. The applicant was provisionally arrested in Western Australia that day. 6 On 18 September 2009 Magistrate Paul Heaney determined that the applicant was eligible for surrender to Indonesia and issued a warrant under s 19(9) of the Act committing the applicant to prison to await surrender or release pursuant to an order under s 22(5) of the Act. 7 Officers of the Attorney-General's Department (the Department) prepared a submission dated 3 December 2010, including attachments, for consideration by the first respondent (the Minister) in determining whether the applicant should be surrendered to Indonesia (the s 22 submission). Attachment B to the s 22 submission (Attachment B) contained a detailed analysis of grounds for refusal of surrender under the Act. 8 On 17 December 2010 the Minister determined, under s 22(2) of the Act, that the applicant be surrendered to Indonesia (the s 22 decision) and issued a warrant for the surrender of the applicant under s 23 of the Act (the s 23 warrant). 9 The applicant was advised of the Minister's decision on 17 December 2010 and on 18 December 2010 an application was filed with the Federal Court (No WAD 404 of 2010) seeking an interim order restraining implementation of the Minister's determination and warrant. 10 On 18 December 2010 I made a consent order that: (a) the Minister be prohibited and restrained from giving effect to his decision of 17 December 2010; and (b) the applicant file and serve an application for judicial review of the Minister's decision on 20 December 2010 and any amended application giving particulars of the grounds of review by 19 January 2011. 11 In accordance with that order, the applicant filed the present application for review of the Minister's s 22 decision on 20 December 2010 (the application). 12 On 11 March 2011 the applicant filed amended grounds of review. 13 On 1 September 2011 the applicant filed and served a minute of proposed further amended grounds of review to the amended grounds of review dated 11 March 2011 (the applicant's grounds of review) and an outline of submissions. The proposed amendment was not opposed by the Minister and the grounds were amended accordingly. The grounds were further amended during the course of the hearing.

The Act and the Regulations 14 Section 3 of the Act provides that the principal objectives of the Act are: (a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence: (s 3(a)); and (b) . . . (c) to enable Australia to carry out its obligations under extradition treaties: (s 3(c)) [emphasis added]. 15 Part II of the Act establishes the procedures to be followed where a request for extradition is made to Australia by an extradition country. The Act provides for four stages in extradition proceedings - commencement, remand, determination by a magistrate of eligibility for surrender, and executive determination that a person is to be surrendered: Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389. The applicant challenges the decision made at the executive determination stage (s 22). 16 Section 22 of the Act provides for an executive determination as to whether a person, who has been found by a magistrate to be an eligible person, is to be surrendered. Section 22(3)(a)-(f) provides a series of requirements which must be met before the eligible person is to be surrendered, and includes a general discretion in para (f). The applicant is an "eligible person" by reason of s 22(1)(b). 17 Under s 11(1)(a) of the Act regulations may state that the Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country. Regulations have been made: Extradition (Republic of Indonesia) Regulations (the Regulations). Regulation 5 provides that the Act applies subject to the Extradition Treaty between Australia and Indonesia done at Jakarta on 22 April 1992 (the Treaty) being the Treaty, a copy of the English text of which is set out in the Schedule. 18 The decision of the Minister under ss 16 and 22 is not subject to review under the Act. Decisions under the Act are excluded from review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) - see Sch 1, para (r) to that Act. The decision is, however, subject to the constitutional writs under s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth). Those writs lie for jurisdictional error, but do not permit a review of the merits of a decision. 19 Relevant jurisdictional errors include disregarding relevant considerations; making the decision on the basis of an error of law; unreasonableness in the Wednesbury sense, which includes illogicality or irrationality in the sense explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [40] per Gummow ACJ and Kiefel J and at [121]-[131] per Crennan and Bell JJ.

The s 22 decision 20 The Act does not require the decision-maker under s 22 to give reasons. There is no other statutory obligation to give reasons: O'Connor v Zentai (2011) 195 FCR 515 at [213]-[215]. 21 The s 22 submission, with supporting attachments, prepared by officers of the Department for the consideration of the Minister is in evidence. The s 22 submission should be read as a whole by the decision-maker: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [28]. 22 The s 22 submission does not constitute a statement of reasons. It does, however, set out for the Minister's consideration the pre-conditions for surrender and the mandatory and discretionary grounds for refusing surrender under s 22 of the Act and the Treaty. In doing so, the representations made on behalf of the applicant were attached and addressed. Attachment B summarises the representations made on behalf of the applicant and the Department's response to the representations relevant to pre-conditions for surrender, grounds for refusal and the exercise of the Minister's discretion. The s 22 submission includes the Department's advice that it is open to the Minister to be satisfied that the requirements under the Treaty and statutory preconditions under the Act for surrendering the applicant to Indonesia are met. The Minister's determination is recorded on the front page of the s 22 submission. 23 The decision making power under s 22 of the Act includes requirements that the relevant decision-maker is "satisfied" about certain matters. 24 Such provisions are construed as requiring the decision-maker to reasonably form the opinion or be so satisfied. The question on judicial review is whether the decision-maker could have attained that satisfaction reasonably, in the sense explained in numerous authorities in the High Court: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [73].

The affidavits 25 The Minister relied on an affidavit of Peter John Corbould sworn on 26 May 2011. 26 I will now turn to the grounds of review pressed by the applicant.

Grounds 1 and 2 27 Grounds 1 and 2, which are as follows, may be conveniently considered together. 1. The First Respondent (`the Respondent') made an error as to his jurisdiction by disregarding a relevant consideration in that in making the decision the Respondent failed to have regard to the following: (a) that Australia is a party to and has ratified the International Covenant on Civil and Political Rights ("the ICCPR") and adopted the First Optional Protocol to the ICCPR; (b) by reason of (a) above, the Respondent was required in making the decision to consider whether the treatment by the Republic of Indonesia of the Applicant giving rise to the request for the Applicant's extradition contravened or was inconsistent with the provisions of the ICCPR; (c) the trial of the Applicant in absentia, other than where the Applicant had waived his right to be present was, and is, inconsistent with Article 14(3)(d) of the ICCPR, and international law. (d) having been tried in absentia, the Applicant has lost the right to examine the witnesses against him and obtain the attendance of witnesses on his behalf under the same conditions as the witnesses against him, inconsistent with Article 14(3)(e) of the ICCPR, and international law. 2. The Respondent made an error as to his jurisdiction by disregarding a relevant consideration in that in making the decision the Respondent failed to have regard to the following: (a) that Australia is a party to and has ratified the ICCPR and adopted the First Optional Protocol to the ICCPR; (b) by reason of (a) above, the Respondent was required in making the decision to consider whether the treatment by the Republic of Indonesia of the Applicant giving rise to the request for the Applicant's extradition contravened or was inconsistent with provisions of the ICCPR; (c) that the trial of the Applicant in absentia other than where the Applicant would, if extradited to the Republic of Indonesia have an unfettered right to a retrial was and is inconsistent with Article 14(3)(d) of the ICCPR, and international law. 28 Australia is a party to the International Covenant on Civil and Political Rights (ICCPR), but the ICCPR does not form part of Australian municipal law. 29 The applicant contends that the Minister was obliged to consider Australia's treaty obligations under s 22(2) and s 22(3)(f) of the Act and that the applicant's trial in absentia was inconsistent with Arts 14(3)(d) and 14(3)(e) of the ICCPR. 30 Section 22(2) and 22(3)(f) of the Act provide: (2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences. (3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if: . . . (f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence. 31 Articles 14(3)(d) and 14(3)(e) of the ICCPR provide: 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: . . . (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; 32 The applicant submits that the failure of the Minister to have regard to the fact that, if extradited, the applicant will be denied rights accorded to him under Art 14 of the ICCPR which would place Australia in breach of its obligations under the ICCPR, constitutes a failure by the Minister to have regard to a relevant consideration. 33 I do not agree. These grounds are, in my opinion, misconceived in so far as the applicant contends that the Minister committed jurisdictional error by failing to take into account a relevant consideration. 34 The respondent submits that the considerations that are, or are not, relevant to a decision maker's task are to be identified by reference to the statute under which the decision is to be made rather than to the particular facts of the case citing support such a conclusion: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73]-[74]. He submits that the matters which he was bound to take into consideration in deciding whether to surrender the applicant are to be found in s 22(3) of the Act which makes no reference to the ICCPR and further, that no obligation to consider the ICCPR is to be implied having regard to the subject matter, scope and purpose of the Act. 35 Contrary to the respondent's submissions I am of the opinion that the Minister was obliged to take into account Australia's obligations under the ICCPR and in particular that the applicant's trial and conviction in absentia contravened or was inconsistent with Arts 14(3)(d) and 14(3)(e) of the ICCPR. The judgments of the plurality in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 support this approach. 36 The ICCPR on the other hand, is not one of the "circumstances to which the Minister is to have regard" under s 22(2). Section 22(2) of the Act contains no matters relevant to the making of a surrender determination. The "circumstances" referred to in s 22(2) are circumstances relevant to how soon it may be "reasonably practicable" to make such a determination and are not, contrary to the applicants' submission, circumstances relevant to whether a surrender determination should be made. 37 Whilst therefore the applicant had a legitimate expectation that the ICCPR would be considered by the Minister, the Minister did not disregard this relevant consideration. This was not a case like Teoh where the error was a failure on the part of the Minister to afford procedural fairness. 38 The applicant's real complaint is that the Minister did not exercise his discretion under s 22 in his favour. That raises fresh considerations which are dealt with under grounds 3 and 4. 39 Grounds 1 and 2 fail. The applicant also made a number of submissions as to the interrelationship between criminal trials held in absentia and extradition of persons so convicted. It is unnecessary to deal with these submissions because of the view to which I have come concerning grounds 1 and 2.

Grounds 3 and 4 40 Grounds 3 and 4 emanate from the fact of the applicant's trial and appeal in absentia and his contention that because he now has no right of a further appeal or retrial that his extradition would be unjust, oppressive or incompatible with humanitarian considerations. 41 Ground 3 is as follows: The respondent made an error as to his jurisdiction by making an error of law in that: (a) the Extradition Treaty between Australia and the Republic of Indonesia, scheduled to the Extradition (Republic of Indonesia) Regulations requires that the Respondent give consideration, in making his decision as to whether to extradite the Applicant, as to whether the extradition of the applicant to the Republic of Indonesia would be unjust or oppressive or incompatible with humanitarian considerations (Article 9(2)(b)); (b) any extradition to the Republic of Indonesia of a person tried in absentia, where upon extradition the person does not have a right to appeal, or alternatively is not guaranteed an unfettered right to a re-trial of the matters tried in absentia, constitutes extradition that is unjust, alternatively oppressive, alternatively incompatible with humanitarian considerations according to Australian standards; (d) the Respondent did not in making the decision conclude that extradition of the applicant would in these circumstances be unjust, alternatively oppressive, alternatively incompatible with humanitarian considerations according to Australian standards. 42 Ground 4 is as follows: The Respondent made an error as to his jurisdiction by disregarding a relevant consideration being the matter set out under ground 3; alternatively the respondent's decision to surrender the applicant was so unreasonable that it went beyond his jurisdiction. 43 It is common ground, and I accept, that in considering whether the applicant should be surrendered, the Minister was required under s 22(3)(e) of the Act and Art 9(2)(b) of the Treaty to consider, while also taking into account the nature of the offence and the interests of Indonesia, whether, in the circumstances of the case, including the age, health or other personal circumstances of the application, the extradition would be "unjust, oppressive or incompatible with humanitarian considerations". 44 Article 9(2)(b) of the Treaty is a limitation, condition, exception or qualification to the Act, within the meaning of s 11 of the Act. It provides as follows: 2. Extradition may be refused in any of the following circumstances: (a) … (b) where the Requested State, while also taking into account the nature of the offence and the interests of the Requesting State, considers that, in the circumstances of the case, including the age, health or other personal circumstances of the person whose extradition is requested, the extradition of that person would be unjust, oppressive or incompatible with humanitarian considerations; (Emphasis added) 45 Section 22(3)(e) of the Act provides: (3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if: (e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that: (i) surrender of the person in relation to the offence shall be refused; or (ii) surrender of the person in relation to the offence may be refused; in certain circumstances - the Attorney-General is satisfied: (iii) where subparagraph (i) applies - that the circumstances do not exist; or (iv) where subparagraph (ii) applies - either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused. 46 Article 9(2)(b) of the Treaty is one of the discretionary grounds for refusal of surrender. By virtue of s 22(3)(e)(ii) and (iv) even a conclusion that extradition would be "unjust, oppressive or incompatible with humanitarian considerations" does not mandate a decision not to surrender.

Circumstances leading to applicant's conviction in absentia 47 Notification of his criminal trial was effected upon the applicant by the Indonesian equivalent of substituted service. Summonses were conveyed to the Village Head at the village where the applicant had a residence as it was known by the Indonesian authorities that he was not then living there. Notices of the several summonses were also placed in the Indonesian press, 'The Terbit Daily' and 'Bisnis Indonesia' in April 2002. 48 Further advertisements as to a summons to the applicant to appear in court on 8 July 2002 were placed in Indonesian newspapers in late June 2002. 49 The trial was then ordered to proceed on 24 July 2002 and following a trial the applicant was sentenced to a term of life imprisonment, together with a fine of RP 30,000,000 with a further term of 6 months imprisonment in default of payment. 50 In July 1999, several years prior to the instigation of the criminal charges, the applicant had travelled to Australia to live with his wife and family. He registered his residential address in Perth with the Indonesian Consulate in November of that year. A Certificate of Good Conduct was issued by Indonesian Police to the applicant for the purpose of his travel to Australia. He openly travelled back to Indonesia in March 2000. In November 2002, he was granted Australian citizenship. 51 It is by no means clear why the Indonesian prosecutors determined, in their discretion, to try the applicant both in his absence and without his knowledge and later joined an appeal by the applicant, again in his absence, and without his knowledge, to an appeal brought by his co-convicted. It seems that trials of persons upon criminal charges in absentia is not common in Indonesia but they do occur. The effect however, of the applicant's joinder in the appeal, which was dismissed, is that the applicant now has no right of appeal from his conviction and sentence and as a consequence no prospect of a retrial.

The PK review process 52 Although he has no right to a retrial or another appeal, it would be open to the applicant, were he extradited to Indonesia, to seek an extraordinary legal review of his conviction known as a Peninjauan Kembali (PK). Under Art 263 of the Indonesian Criminal Procedure Code, a convicted person may submit a request to the Supreme Court for a reconsideration of a judgment which has become final and binding. 53 Article 263 sets out three circumstances in which a convicted person may make a request for a PK: (a) there are new circumstances giving rise to a strong presumption that, if the circumstances had been known at the time of the trial, the outcome would have been an acquittal or dismissal of all charges, or the charges would not have been acceptable or less severe provisions would have been applied to the case; (b) there are statements in various judgments that something has been proven but the matters or circumstances which form the basis and reason for the decision are contradictory; (c) A judgment clearly displays a mistake by the judge or manifest error. 54 PK applications are first heard in the court of first instance which in this case is the Central Jakarta District Court. The District Court would appoint a judge or panel of judges, who must not have had involvement in the initial case, to inspect the PK application and determine whether it meets one of the three criteria in Art 263. 55 The District Court will then schedule a hearing at which the applicant and the prosecutors may present their arguments. A judicial opinion is then prepared within 1-3 weeks which constitutes a recommendation to the Supreme Court in making its final decision. The judicial opinion and the PK application will then be considered by the Supreme Court. A presiding Judge, panel and a registrar will be appointed. Two members of the panel produce separate legal opinions for the presiding judge who will convene a closed meeting with the other panel members to reach a decision. Thereafter, the presiding judge will schedule a hearing at which the decision is read out. 56 If the PK application is rejected, the Supreme Court will issue a declaration that the prior court decision is valid. If the PK application is accepted, the Supreme Court will annul the previous court decision and issue an order either acquitting the applicant, releasing him or her from all charges, rejecting the indictment or imposing a lighter penalty. 57 The usual practice is that witnesses are not called for the hearings, either at the District Court or Supreme Court stages, and that the sections of the Criminal Procedural Code relating to such hearings do not make any reference to witnesses. Article 265(2) merely states that the applicant and prosecutors must attend the hearing in the court of first instance and may make submissions. 58 However, it appears that the parties may seek permission from the court of first instance to present witnesses at the initial judicial review. It is plainly not a legal entitlement. Such permission was, it seems, given in relation to the applications of three members of the so-called 'Bali 9' drug smugglers. In that case, a series of witnesses gave evidence in the Denpasar District Court. Generally, prosecutors must also agree to the request. If these witnesses are mentioned in the written PK application, and particularly if their testimony constitutes new evidence in the case, it is likely the Court will allow them to testify at the hearing. 59 The applicant submits that the terms of Art 263 combined with information provided to the Minister from the Australian Embassy in Jakarta confirms Dr Boas' legal opinion, submitted to the Minister on behalf of the applicant, and establishes that the PK review "does not come close to substituting for a right to a trial de novo or a full right of appeal for his initial conviction". 60 I accept the applicant's submission and share the view expressed by Dr Boas. The process I outlined above falls well short of what we in Australia, as a matter of law, would regard as fair or just. The PK review process is discretionary. It makes no provision for testing evidence already given at the trial in absentia by cross-examination of such witnesses. Their evidence would not constitute "new circumstances" for the purposes of Art 263. At least two witnesses, who could have given relevant and admissible evidence on behalf of the applicant are no longer available to do so. I am not informed as to whether or not the applicant would have access to a transcript of the evidence given against him at the trial or witness statements in the possession of the prosecuting authority. Nor is there any evidence of written judgments going to the applicant's convictions. Moreover, the facts relating to this case go back at least 10 years if not more. There is no right in the applicant to call witnesses. The apparent practice, although not reflected in Art 263, that witnesses will be allowed to testify at a hearing, where that evidence constitutes new evidence, is not a complete answer to these fundamental shortcomings, which sit in the context of alleged crimes for which the applicant has been given a life sentence. I am informed by counsel that "life" in Indonesia in this context is to be taken literally. 61 The applicant submits that the Minister has either made an error by not finding that surrender would be unjust or oppressive or incompatible with humanitarian considerations or, alternatively, by determining that despite the fact that surrender would be unjust, oppressive or incompatible with humanitarian considerations the surrender of Mr Adamas is nevertheless appropriate. 62 The respondent submits that the applicant has failed to identify the error of law allegedly made by the Minister. 63 I disagree. The thrust of this ground, as argued, in effect, is that the Minister misdirected himself as to the test to be applied in determining whether the applicant's extradition would be unjust, oppressive or incompatible with humanitarian considerations and thereby took an irrelevant consideration into account. Alternatively, the applicant contends that it was unreasonable for the Minister to have exercised his discretion to not refuse extradition. Either of these grounds, if made out, will constitute jurisdictional error. 64 The respondent submits that ground 4, as with ground 3, is in substance a merits challenge to the Minister's s 22 decision and identifies no "relevant consideration" in the Peko-Wallsend sense. 65 Again, I do not agree and for the same reasons.

The relevant test 66 It is reasonable to infer, absent written reasons, that the Minister had regard to the Departmental comment and in particular at Attachment B as to what he ought relevantly consider in determining whether or not the applicant's extradition would be unjust, oppressive or incompatible with humanitarian considerations: Foster v Minister for Customs & Justice (1999) 164 ALR 357; O'Donoghue v The Honourable Brendan O'Connor (No 2) (2012) 283 ALR 682 at [135]-[136]. It was expressly recommended that he read the submissions and at the front of the submissions he circled the word "Approved" in respect to that recommendation. 67 Attachment B contained, in this respect, Departmental Comment under the heading: "Right to a fair trial - Unfairness of (applicants) conviction in absentia and Australian case law relating to unfairness." 68 Whilst, under that heading, there was reference in the applicant's submission to the Minister concerning Bannister v New Zealand [1999] FCA 362, the Departmental comment commenced in this way at para [185]: The analysis below addresses the right to a fair trial and fairness of (the applicant's) conviction in absentia by reference to Indonesian law, Australian law (including case law on extradition to New Zealand) and international law. It then stated: … although you may take guidance from Australian case law relating to fair trial standards generally (including in the context of extradition to New Zealand), the Department considers it is open to you to conclude, taking into account the circumstances of (the applicant's) conviction in absentia, that his surrender would not be unjust, oppressive or incompatible with humanitarian considerations. (Emphasis added) 69 At para [189]-[190] it stated: In terms of the general unfairness or otherwise of (the applicant's) conviction in absentia, it is clear that such convictions are not commonplace in Indonesia and only occur under Indonesian law in certain limited circumstances for certain offences, which include corruption. Indonesia has advised (the applicant's) case fell within those circumstances and that his trial took place in accordance with Indonesian law. In this respect, the trial cannot be said to have been unfair under Indonesian law by reason of (the applicant's) absence alone. As mentioned at paragraphs 77-78 above, Professor Lindsey has advised that The Jakarta District Court considered it appropriate to proceed on this basis in (the applicant's) case, and Indonesian authorities have advised the summons procedure was conducted in an 'optimum and proper manner' (see page 3 of Attachment E3). In this respect, it appears that the decision to proceed with the criminal trial against (the applicant) in his absence was in accordance with Indonesian law. 70 Paragraph [194] and [195] state: 194. The case law on waiving one's right to be present in the context of extradition for convictions in absentia and, specifically whether a person's voluntary absence means they have in fact waived their right to be present, is not settled. However, in accordance with recent case law, the more relevant question is not whether a person has voluntarily absented himself or waived his right to be present at his trial, but whether, in all the circumstances, the trial that did take place can be regarded as fair despite the fact that the defendant was not in attendance. In Hellenic Republic v Tzatzimakis [2003] FCAFC 4, Hill J notes (at [53]) that the decision of the House of Lords in Jones v R [2002] UKHL 5 provides a useful discussion of the European and common law position regarding trials in absentia. In that case, Lord Rodger noted (at [55]) that the European Court of Human Rights, in dealing with cases where the right to a fair trial under Article 6 of the European Convention on Human Rights is said to have been breached, in particular in circumstances where a person has been convicted in their absence, 'has been at pains' to emphasise that it is not the court's function to elaborate a general theory in this area (of convictions in absentia), recognising that states have different rules of procedure and the means by which they secure a fair trial in the absence of the defendant will also vary. Indeed, Finkelstein J later noted in Tzatzimakis (at [83]) that in many civil law countries an accused is entitled but not actually obliged to attend his trial and that, if he has notice but does not attend, he may be convicted in his absence. 195. In accordance with the views of the House of Lords in Jones, what is important in a trial that has occurred in a person's absence is that the trial in the whole of the circumstances was fair, including that the trial judge exercised proper discretion in determining to proceed with the trial, the conduct of the trial itself (and if relevant, directions to the jury) and that the person has an opportunity to appeal the conviction both in fact and law (per Lords Bingham at [6], Hoffman at [20] and Rodger at [76]). 71 Paragraphs [197]-[202] state: 197. As a preliminary point, the Department notes that convictions in a person's absence are rare in Australia and generally only occur for summary offences or where the defendant has deliberately absented himself from proceedings after having appeared initially. 198. In seeking to rely on case law concerning extradition from Australia to New Zealand, (the applicant) appears to equate his conviction in absentia and the surrounding circumstances with an unfair trial and, on this basis, submits that his extradition should therefore be refused. 199. In relation to what might constitute an unfair trial, (the applicant) has asked you to consider Australian case law on the right to a fair trial in domestic proceedings in Australia which, he claims, includes the right to be present. In Dietrich the High Court held that the right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system. Mason CJ noted that "[t]he right is manifested in rules of [Australian] law and of practice designed to regulate the course of the trial" (at [7]) but that "[t]here has been no judicial attempt to list exhaustively the attributes to a fair trial" (at [8]). 200. In terms of the application of Australia's international obligations, Mason CJ went on to note that "[r)atification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions. No such legislation has been passed" (citations omitted) (at [17]). 201. Deane J also noted that "[t]he fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law" (at [1]) (Department's emphasis). 202. Applying this principle in (the applicant's) case, on the basis of information provided by Indonesia, it appears that the trial was conducted according to law in Indonesia. (Emphasis in original) 72 There followed further Departmental comment, under this head, concerning international comity and Australia's bilateral treaty obligations. 73 At para [220] it stated: While it is evident from the above discussion that issues going to the fairness of the trial process in the Requesting State can potentially be taken into account by the Executive, such issues must be considered in all the circumstances of the case and balanced with the principle of international comity. 74 The Minister had the benefit also of legal advice from a Professor Lindsey although I do not know the content or effect of that advice. Legal advice was also provided to the Minister by The Office of International Law (OIL). Most of its contents have been redacted from the papers supplied to the applicant and the Court. An earlier application by the applicant for production of those advices was successfully resisted by the Minister: Adamas v O'Connor (2012) 282 ALR 302. The relevant advice of Professor Lindsey which has been redacted is sandwiched between statements to the effect that trials in absentia are not unfair under Indonesia law. That is beside the point. The redacted OIL advice is located under a heading "Australia's international obligations relating to a fair trial". That description also appears to miss the point which is whether extraditing the applicant to Indonesia would, in the circumstances, be unjust, oppressive or incompatible with humanitarian considerations judged by the standards of Australian domestic criminal law. 75 I regard the Departmental comment as to the considerations to which the Minister might have regard on the question whether the extradition of the applicant would be unjust, oppressive or incompatible with humanitarian considerations as confused and confusing. They introduce quite irrelevant considerations and fail to state, by way of Departmental comment, what the position was as a matter of law. Viewed in that way the Minister was confronted by irrelevant considerations and taken as a whole, denied, in effect, the single and most important consideration, namely, the approach found in Bannister and other cases. It is no answer to say that this case was referred to in the applicant's submissions. The submissions of course need to be read as a whole but the applicant's submission concerning Australian case law was subverted by the Departmental comment in at least two ways. First at [185] the Minister was informed that he may take guidance from Australian case law. Of course, the Minister was required to apply Australian law. It was not a matter of choice. Second at [199] the comment couched the applicant's submission concerning a person's entitlement to be present at their criminal trial as a "claim". It is not a claim. It is a right subject only to limited exceptions which are not here relevant and it is the law of Australia. 76 Taken as a whole, it is reasonable to infer that the Minister took into account irrelevant considerations and failed to take account of a relevant consideration going to his determination, as I have found, that the applicant's extradition would not be unjust, oppressive or incompatible with humanitarian considerations. The first irrelevant consideration is as to the application of Indonesian law. The comment at [189] was that the applicant's trial "cannot be said to have been unfair by Indonesian law by reason of (the applicant's) absence alone." A further example of this is the comment by the Department to the Minister at [201]-[202] which concluded that the Australian legal principle that "no person shall be convicted of a crime except after a fair trial according to law" (emphasis in original) when applied in the applicant's case meant that his trial was "conducted according to law in Indonesia" (emphasis in original). This misconceives the question. 77 What is meant by the expression "unjust, oppressive or incompatible with humanitarian considerations" is the subject of authority including Perry v Lean (1985) 63 ALR 407; New Zealand v Venkataya (1995) 57 FCR 151; Bannister v New Zealand [1999] FCA 362; Foster v Minister for Customs and Justice (2000) 200 CLR 442. The underlying principle is that the standards to be applied in any determination of that expression or words within it, in an extradition context, are those that accord with Australian standards and not those of another country. 78 The second irrelevant consideration is that the Minister may take guidance on this subject from Australian case law relating to a fair trial. That is not the legal position. The Minister was obliged to apply Australia law. 79 The third irrelevant consideration is the employment of the reasoning from the UK decision cited at para [194] of Attachment B as Jones v R [2002] UKHL 5. In fact the correct citation is R v Jones [2002] UKHL 5. 80 The fact that Hill J in Hellenic Republic v Tzatzimakis [2003] FCAFC 4 at [53] noted that R v Jones provides a useful discussion of the European and common law position regarding trials in absentia is an entirely irrelevant consideration. 81 Finally, I find that the Minister failed to take into account the correct legal test as articulated in Bannister and other cases. I have no confidence that the Minister applied the correct test. He cannot be criticised in this respect given the content of the Departmental comment. Nonetheless, as an objective fact, I find that he did not judge the question of injustice, oppression or incompatibility with humanitarian standards according to Australian standards. This was something which he was bound to do in the Peko-Wallsend sense. He did not turn his mind to the correct question and thereby failed to exercise the power conferred upon him by the Act but rather acted outside that power: de Bruyn v Minister for Justice & Customs [2004] FCAFC 334 at [87] per Emmett J. 82 These failures constitute jurisdictional error on the part of the Minister and are sufficient warrant in themselves to set aside the Minister's determination.

Wednesbury unreasonableness 83 The applicant submits that the injustice of his position and the oppression to him is so fundamental that no other relevant consideration could have outweighed the fact that surrender in this case would be unjust, oppressive or incompatible with humanitarian considerations. This language adopts text from Art 9(2)(b) of the Treaty. He contends that the Minister's decision to not refuse to surrender the applicant was so unreasonable that it went beyond his jurisdiction: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 229. He asserts that the Minister's decision was illogical and irrational. 84 The scope for a challenge based on Wednesbury unreasonableness is extremely limited, with success on this ground being exceptional: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 473 [100]. It is nonetheless, open in an appropriate case. 85 What then is necessary to constitute this degree of unreasonableness to warrant judicial intervention? In SZMDS, Gummow ACJ and Kiefel J said at [40] (citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 20-21 per Gummow and Hayne JJ): … the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. 86 Crennan and Bell JJ in SZMDS at [121]-[131] pointed up the semantic and definitional questions thrown up by the use of words such as "irrational" and "illogical", concluding at [130] that: (i) in the context of the tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under (the relevant section), is one at which no rational or logical decision maker could arrive on the same evidence. 87 What is evident in this exercise of judgment is, as Gummow ACJ and Kiefel J observed at [40] that the "critical question" should not receive an affirmative answer that is lightly given. Putting the same proposition in a different way, Crennan and Bell JJ at [130] said that "a court should be slow, although not unwilling, to interfere in an appropriate case". 88 The respondent submits that the applicant's allegation of unreasonableness and illogicality is nothing more than an assertion that the Minister failed to give paramount weight to the applicant's claim that it would be unjust to extradite him in circumstances where he was convicted in absentia and not guaranteed an unfettered right to a re-trial and that such an assertion does not constitute Wednesbury unreasonableness: Foster v Minister for Customs and Justice (1999) 164 ALR 357 at 376 [73] per Drummond J. Crennan and Bell JJ in SZMDS at [130] put the same point in terms that, in that case, it was an issue of jurisdictional fact which different minds might reach different conclusions. The question here is whether or not this is the case 89 It is against that cautionary backdrop that I have to consider this aspect of the case. The resolution of it turns on whether the applicant, if surrendered to Indonesia, is likely to receive a fair trial and if not whether, in those circumstances, the Minister's implied finding that his extradition would not be unjust or oppressive or incompatible with humanitarian considerations is unreasonable or the exercise of his discretion not to refuse surrender is likewise unreasonable such as to constitute jurisdictional error. 90 I describe the finding as implicit for these reasons. The applicant, by his solicitor, requested the Minister to provide written reasons for his decision. He was not obliged to comply with this request and did not do so. He was however provided with a redacted copy of the Department's submissions to the Minister for his consideration in making a determination under s 22. This included the applicant's submissions and the Department's comment on these. The submission from the Department recommended that the Minister determine under s 22(2) of the Act that the applicant be surrendered to Indonesia. The Department's reasons, as I mentioned, do not constitute the Minister's reasons. I do not know therefore whether the Minister found, that taking into account the circumstances of the applicant's conviction in absentia, that his surrender would not be unjust, oppressive or incompatible with humanitarian considerations. However, I infer from Attachment B to the Department's submission that this was his conclusion and his discretion to not refuse surrender proceeded from that conclusion. 91 As a matter of judgment I have already concluded that the PK review process falls well short of what constitutes an appeal or re-trial in this country. This, in my view, is indisputable. It follows on from the trial and appeal conducted in absentia. That of course is a notion which, generally, is quite foreign to our jurisprudence. The right to be tried in person is, with limited exceptions, a well-established principle of our criminal law. It is an essential principle of the law that an accused be present at their trial: Lawrence v The King [1933] AC 699 at 708. This was cited with approval in R v Cornwell [1972] 2 NSWLR 1. It was again referred to and reaffirmed by the Judicial Committee of the Privy Council more recently in Kunnath v The State [1993] 4 All ER 30 and the relevant passage was set out and adopted by the High Court in Ebatarinja v Deland (1998) 194 CLR 444 at [26]. More recently, the High Court in Moti v The Queen [2011] HCA 50 at [54] referred to what had been said by the plurality in Lipohar v The Queen (1999) 200 CLR 485 at 514 [69] that the trial of an indictable offence must generally be conducted in the presence of the accused "there being no trial in absentia at common law in the ordinary course". The principle is also now reflected in the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(d) and the Human Rights Act 2004 (ACT) s 22(2)(d). Other State legislation such as s 88(3) of the Criminal Procedure Act 2004 (WA) requires an accused to be present during criminal proceedings other than in certain circumstances which are not here relevant. It involves a matter of fundamental importance to the rule of law in this country governing the rights of accused persons in criminal proceedings. Australia is not alone in maintaining this right. It is a right, for example, which is reflected in Art 14(3)(d) of the ICCPR. 92 Indeed, the submission of the Department itself to the Minister stated that the applicant "appears to have what may be regarded as a limited right of appeal to the Indonesian Supreme Court." It went on to state that nonetheless "the Department considers that, on balance, bearing in mind all the circumstances including Australia's obligations to Indonesia under the Treaty, (and) the seriousness of the offending of which (the applicant) has been convicted, it remains open to you to determine to order his surrender to Indonesia". The first circumstance, whilst relevant, needs to be seen in light of the provision of that Treaty which contemplates that surrender may be refused where extradition would be unjust, oppressive or incompatible with humanitarian considerations (Art 9(2)(b)). The second circumstance begs the question posed by the first circumstance: injustice, oppression and incompatibility with humanitarian considerations. 93 The Full Court in Bannister when considering whether "for any other reason" it would be unjust or oppressive pursuant to s 34(2) of the Act to surrender a person to New Zealand, held that it was appropriate to have regard to the quality of trial which that person was likely to receive. It concluded, in setting aside the order directing the issue of a warrant for extradition, that the particular trial process, which involved the trial of "representative" charges was unjust or oppressive to the applicant. A very helpful historical and legal analysis of such a ground is found in the Full Court decision in New Zealand v Moloney [2006] FCAFC 143. The Full Court, in rejecting New Zealand's contention that Bannister had been erroneously decided, said that it was consistent with well-established authority and accorded squarely with the reasoning in Binge v Bennett (1988) 13 NSWLR 578. There, the New South Wales Court of Appeal held that evidence that the appellants could not receive a fair trial in Queensland was admissible for the purpose of proving that it would be unjust or oppressive to return those appellants to that State within the meaning of s 18(6)(c) of the Service and Execution of Process Act 1901 (Cth). 94 Significantly, in Moloney at [138], the Full Court observed that Bannister was not dealing with a question of admissibility or a technical rule of criminal procedure but with a more fundamental matter, namely, the right to have guilt or innocence determined by a jury that was agreed upon its verdict. That is to describe a particular requirement for the conduct of a fair trial in criminal proceedings in this country. The trial of a person, upon serious criminal charges, in their presence, with the right to challenge the prosecutor's evidence and to call their own evidence in their defence is no less fundamental. The House of Lords judgment in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 is another case where extradition was refused as being unjust or oppressive because of the likely unfairness of the trial, owing to the impracticability of witnesses who could give evidence relevant to the accused's alibi returning safely to Cyprus to give that evidence at his trial. 95 The PK review process will not deliver a fair trial or appeal by Australian standards. 96 Section 34(2)(c), unlike s 22(3)(e)(ii) and (iv) of the Act, mandates the release of the person whose extradition is requested where relevant injustice or oppression to that person is made out. Accordingly the question, as I mentioned earlier, remains as to whether the discretion exercised by the Minister to not refuse extradition, was unreasonable. Self-evidently the trial and subsequent appeal each conducted in absentia and without the applicant's knowledge were not fair by Australian standards. The PK review process will not deliver a fair appeal or re-trial to the applicant by Australian standards. Here the applicant will be denied a re-trial as that expression is understood in this country in respect of serious charges of which he stands convicted in absentia. I regard that as unjust and oppressive to him and also to be incompatible with humanitarian considerations. No doubt a case may arise where despite such a finding it would nonetheless not be an unreasonable exercise of discretion for the Minister to not refuse extradition. Such a case would, it seems to me, be rare. This is not such a case. The applicant faces imprisonment for the rest of his life following a trial and appeal conducted in his absence and without his knowledge. 97 Moreover, I do not think that it takes the matter further that Art 11(2)(b) of the Treaty contemplates that a request may be made for extradition of a person convicted in their absence. One can envisage a situation, for example, where a person flees from Indonesia in order to avoid being charged or, if charged, to avoid being tried in person. This might amount to a waiver of his or her right to be tried in person: R v Jones (1998) 72 SASR 281. The Minister might take into account such consideration in exercising his discretion under s 22. However, that is not this case. In fact the Minister was informed, in the Department's written submissions that the Department was not in possession of any information which positively establishes that the applicant was aware of the criminal proceedings in Indonesia and chose to deliberately absent himself. It did however invite the Minister to draw inferences to that effect. The Department's view was that "it is somewhat difficult to accept that (the applicant) had absolutely no knowledge of at least the law enforcement interest in him." Even had the Minister accepted that to be the position it falls short of knowledge that charges had been laid or that a trial was to be conducted or that a subsequent appeal was to be conducted. 98 Moreover, the Treaty is silent as to the position, exceptional as it is, where a person is not only convicted in absentia but has had an appeal, instituted by the prosecutor, heard and dismissed in absentia. 99 I find that the Minister was in error in not finding that the applicant's extradition would be unjust, oppressive or incompatible with humanitarian considerations. These were jurisdictional facts and the Minister's conclusion in respect of them was unreasonable in the Wednesbury sense. I have difficulty in seeing how, reasonably, the Minister could have concluded otherwise other than that he took into account, as I find he did, the wrong legal test for what constitutes such matters. If he had applied the correct test, I find it almost inconceivable that he would not have concluded that the extradition of the applicant would be unjust, oppressive or incompatible with humanitarian considerations. The consequent exercise of the Minister's discretion in not refusing to surrender the applicant was in turn unreasonable. 100 I would accordingly uphold grounds 3 and 4.

Ground 5 101 Ground 5 is expressed in terms of "disregarding a relevant consideration", but the submissions are in substance an impermissible merits challenge. 102 The ground is based upon the assertion that the applicant had an extradition objection under s 7 of the Act. The Minister was required pursuant to s 22(3)(a) of the Act to consider whether there was an extradition objection in relation to the offence for which the applicant's extradition was sought. The objection relied upon is in s 7(b) or 7(c). However, that is subject to the Treaty, s 11(1)(a) of the Act and regulation 5 of the Regulations. Article 9(1)(d) of the Treaty provides that extradition shall not be granted if Australia has "substantial grounds" for believing that Indonesia's request was made "for the purpose of prosecuting or punishing [the applicant] on account of his race …". There is no evidence of such substantial grounds or that the Minister held such a belief. 103 The applicant, in particular, points to the trial in absentia as evidence of discrimination by reason of his Chinese ethnicity. His principal complaint about the trial in absentia is that the Indonesian "government" knew his whereabouts. However, on the material before the Minister it seems that the Indonesian consulate in Perth did not inform the Jakarta prosecutors of the applicant's address or even that he was in Australia. The applicant requires to show, in order to make out racial discrimination in this context, that it was by reason of his ethnicity that the consulate declined to inform Jakarta, when he was sought for trial. There was no evidence capable of establishing this as a fact. That the Indonesian authorities did not, at the outset, attempt to locate the applicant employing the services of Interpol does not give rise to an inevitable or even probable inference that this was because of the applicant's ethnicity. Neither was such a conclusion warranted by evidence before the Minister of general prejudice against ethnic Chinese. 104 Hence, this does not constitute an extradition objection and is not a ground under the Treaty for refusing surrender. 105 The allegation of racial discrimination is relevant only if it comes within the discretion under Article 9(2)(b) of the Treaty or s 22(3)(f) of the Act. 106 Under the Treaty, there is a question whether racial discrimination, having been dealt with expressly in Art 9(1) in a mandatory fashion, is also implicitly within Art 9(2) as a discretionary matter. Is it open to the Minister to say, while there is no "substantial" ground for believing racial discrimination motivates Indonesia, I will nevertheless exercise my discretion on non-substantial grounds to refuse surrender? Even if so, which the Minister disputes, it could not on this ground be a jurisdictional error not to refuse surrender. 107 Even absent the Treaty, under the Act the question is whether the Minister was satisfied that there was no extradition objection in relation to the offence. The material before the respondent is summarised in Attachment B to the s 22 submission at [25]-[105]. It cannot be concluded from that material and the decision, that there was an error going to jurisdiction. In particular, it cannot be concluded that there was a failure to properly consider whether there was an extradition objection under s 7 of the Act.

Ground 6: 108 The applicant contends that the respondent made an error as to his jurisdiction by disregarding a relevant consideration in that in making his determination the respondent failed to have regard to whether there were substantial grounds for believing that because of the high incidence of HIV/AIDS in Indonesian prisons, the applicant would be subject to torture or to cruel, inhuman or degrading treatment or punishment. 109 The Minister was referred to advice from an AusAID adviser based at the Australian Embassy to the effect that a prisoner housed in Cipinang Prison would have a 'minimal chance of contracting HIV/AIDS unless they indulged in HIV risk behaviour or were sexually assaulted by a prisoner with HIV/AIDS'. The applicant submits that given that the applicant is liable to spend the rest of his life in prison it is very plausible that he may be subject to sexual assault or other form of assault by a prisoner with HIV/AIDs and therefore on the basis of the above advice there is more than a minimal chance that he will be exposed to HIV/AIDS. The applicant further submits that taking into account the material contained in the opinion of Dr Boas and the fact that the applicant is liable to life imprisonment, the Minister erred in concluding that there are no substantial reasons for believing that the applicant would be subjected to cruel, inhuman or degrading treatment if he was extradited to serve a sentence of life imprisonment. 110 In my view, ground 6 is a challenge to the merits of the Minister's determination. There is no "relevant consideration" in the Peko-Wallsend sense to which the Minister failed to have regard. I accept the Minister's submissions on this question. 111 Sections 7 and 22(3) of the Act do not mention "cruel, inhuman or degrading treatment or punishment". Section 22(3)(b) mentions torture, but torture is not alleged. 112 The Act applies subject to the Treaty. Article 9(1)(e) of the Treaty provides that extradition shall not be granted to Indonesia if Australia has "substantial reasons" for believing that the applicant "will be subjected to torture or to cruel, inhuman or degrading treatment or punishment." 113 Attachment B to the s 22 submission addressed the applicant's claims that extradition should be refused under Art 9(1)(e) based on the risk of exposure to HIV/AIDS in prison in Indonesia. The material before the Minister also included the two opinions of Dr Boas in support of the applicant's claims. 114 Once it is established that Art 9(1) is not engaged, because no substantial reasons exist for the relevant belief, then it is not open to challenge the determination as a matter of discretion under Art 9(2) or under s 22(3)(f). That is to say, it could not be a jurisdictional error to surrender the applicant merely because there are non-substantial reasons to suspect or believe the applicant will be subjected to cruel, inhuman or degrading treatment or punishment. 115 It was open to the Minister, on the material before him, to conclude that the grounds for refusing extradition under s 22(3)(b) of the Act and Art 9(1)(e) of the Treaty were not made out.

Conclusion 116 The application will be allowed, in part, consequent upon grounds 3 and 4 being made out. I do not consider it necessary to make any declaration. There will be orders quashing the s 22 determination of the Minister as well as the warrant issued under s 23 of the Act. 117 The Minister made written submissions in opposition to the release of the applicant on the basis that there was no challenge before me to the warrant issued pursuant to s 19(9) of the Act by Magistrate Paul Heaney. The applicant made no submissions at all on this question and I will not make such an order although I will grant the parties liberty to make submissions on that question should they wish to do so. I will also hear the parties on the question of costs. I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Charter of Human Rights and Responsibilities Act 2006(Vic)s 25(d), s 25(2)(d)

Extradition Act 1988(Cth)ss 22, 23

Human Rights Act 2004(ACT)s 22(d), s 22(2)(d).

At a glance

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Judgment (31 paragraphs)

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Cases Cited (28)

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