Chan v Minister for Justice & Customs

grounds of review 5 After the applicant dropped several grounds of review at the hearing, only two grounds of review in the amended application remain, both alleging that the Minister's Decision was an improper exercise of the power conferred by s 22(2) of the Act in that the Minister failed to take into account relevant considerations. Those considerations are: (a) the increased significance for the applicant of extradition, trial and, if convicted, a sentence ranging from 3.5 to 5 years, given that he is HIV positive and has a life expectancy estimated at only 15 years; and (b) expert forensic document examination evidence concluding that the signatures allegedly forged by the applicant, being the basis of the forgery charges giving rise to the extradition request, may well be genuine.

Conclusion 6 For reasons set out below I have decided to dismiss this application. Material dealing with both of the issues referred to in par [5] was before the Minister and, on the evidence presented, it is not possible to conclude that she did not take these matters into account. That being so, the applicant has failed to establish his claims and the application must be dismissed. For this reason it is not strictly necessary to consider whether the Minister was bound to consider one or both of the issues referred to in par [5]. Nevertheless, in deference to the detailed submissions, both written and oral, I have expressed an opinion on this issue.

The statutory framework 7 Once the extradition request had been made, it was necessary to determine whether Mr Chan was eligible for surrender to the Hong Kong authorities. A person's eligibility for surrender is determined in accordance with the provisions of s 19(2) of the Act. Those provisions concern only the formal requirements for extradition. They are not directed to determining whether the person is guilty of the alleged offence. In the proceedings before the magistrate, the applicant was not entitled to adduce evidence to contradict the allegation that he engaged in conduct constituting the extradition offence for which his surrender was sought; s 19(5). In any proceeding reviewing the Magistrate's decision, such evidence is also excluded; s 21(6)(d). 8 In October 1999, a Local Court Magistrate determined, pursuant to s 19 of the Act, that Mr Chan was eligible for surrender in respect of the alleged offences. As a result of the Magistrate's determination (and after an application to this Court to review that decision was withdrawn), the applicant was committed to prison pending surrender or release pursuant to a warrant issued under s 19(9) of the Act. The applicant has been in prison since June 2000.

9 Section 22(2) of the Act provides that at such point,

"The Attorney-General shall, as soon as 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."

The Attorney-General's powers in this respect were exercised by the Minister for Justice and Customs ("Minister"). 10 Section 22(3) of the Act provides that a person in Mr Chan's position is only to be surrendered in relation to a qualifying extradition offence if certain specified conditions are met. Relevantly, these conditions include any limitations, conditions, qualifications or exceptions necessary to give effect to a relevant bilateral extradition treaty, being a treaty a copy of which is set out in the regulations. Clause 5 of the Regulations states that the Act applies in relation to Hong Kong subject to the Agreement for the Surrender of Accused and Convicted Persons between the Government of Australia and the Government of Hong Kong ("Surrender Agreement"). The terms of the Surrender Agreement are set out in the Schedule to the Regulations. 11 Article 6 of the Surrender Agreement sets out the grounds on which surrender must be refused. Article 7 of the Surrender Agreement sets out discretionary grounds on which surrender may be refused. Article 7(e) provides that surrender may be refused if : "the requested Party considers that…in the circumstances of the case, the surrender would be incompatible with humanitarian considerations in view of the age, health or other personal circumstances of the person sought." 12 In summary, the Minister must determine if the person is to be surrendered having regard to the circumstances; s 22(2). She can only decide in favour of surrender if she is satisfied that the requirements of the Surrender Agreement have been met; s 22(3)(e). The terms of the Surrender Agreement require, among other things, that the Minister consider humanitarian considerations; Article 7(e). If she considers that the humanitarian considerations are incompatible with surrender then the Minister may refuse surrender but she is not obliged to do so; s 22(e)(iv). In addition to these considerations, the Minister has what might be termed an overarching discretion to refuse surrender under s 22(3)(f). That is, even if she has the requisite satisfaction in terms of s 22(3)(e), she may still decide not to allow surrender.

The Minister's decision 13 In making her decision concerning the proposed surrender of the applicant, the Minister had before her submissions and documents provided by the applicant's solicitor as well as a submission, prepared by departmental officers, dated 22 December 2000. This submission ("Ministerial Submission") was signed by Sukhpal Singh, Assistant Secretary of the International Branch of the Attorney-General's Department and endorsed by Geoff McDonald, First Assistant Secretary of the Criminal Justice Division of the Attorney-General's Department. The Ministerial Submission refers to a separate document headed "Attachment B - Grounds for Refusal of Surrender" ("Attachment B"). Attachment B considers whether the conditions set out in s 22(3) of the Act are satisfied in the applicant's case. 14 The Ministerial Submission concludes with a recommendation that the Minister determine that the applicant should be surrendered and that she should sign and date the attached warrant. At the end of the Ministerial Submission, provision is made for the Minister to record her decision under two headings. In part (a), being "Surrender approved/not approved", the words "Surrender approved" have been circled and the words "not approved" have been crossed out. In part (b), being "surrender warrant signed/not signed", the words "surrender warrant signed" have been circled and the words "not signed" have been crossed out. The Minister has signed the Ministerial Submission in the space provided for her signature, below the headings referred to above.

Failure to consider relevant factors as a ground of review 15 In the making of an administrative decision, the failure to take into account a relevant consideration is a well-established ground of review, but only where the decision-maker was bound to take the consideration into account; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. In Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375, Deane J observed that: "This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decsion on the ground that a particular one of them was not specifically taken into account." 16 Whether the Minister was bound to consider the considerations set out in par [5] above is a matter of statutory construction. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (supra) at 40 Mason J stated: "… where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act."

Was Minister bound to consider evidence concerning possible prison sentence? 17 Mr Jordan, counsel for the applicant, submitted that, in considering this matter, the Minister was bound to take into account the relevant consideration that the prison sentence given in Hong Kong would probably be at least as long as the applicant's remaining life expectancy (the "life expectancy consideration"). The medical evidence before the Minister suggested that Mr Chan's life expectancy was in the range of 1 to 5 years. The Hong Kong authorities had indicated that, if found guilty, Mr Chan would most likely receive a custodial sentence for a period of 3 to 5 years. Obviously, as time passes, the likelihood increases that the sentence given will amount to a life sentence. 18 It was submitted for the respondent that, although the Minister was bound to consider humanitarian considerations generally, there was no requirement for her to consider the matter at the level of particularity suggested by the applicant; Foster v Minister for Customs and Justice (2000) 200 CLR 442at [45]. In particular, it was submitted that the Minister was not bound to consider whether the life expectancy consideration applied or, if it applied, whether it would be incompatible with humanitarian considerations. 19 I do not accept this submission. As the statutory framework summarised in par [12] shows, Article 7(e) of the Surrender Agreement gives the Minister discretion to refuse surrender on humanitarian grounds. Under s 22(3)(e)(ii) and (iv), the Minister must be satisfied either that the circumstances referred to in Article 7(e) do not exist, or that, despite their existence, the person should still be surrendered. I do not understand how the Minister could reach the requisite state of satisfaction without considering the humanitarian issues specifically referred to in Article 7(e), the details of which were included in the material submitted to her. 20 The statutory provisions that the Minister must consider here are different in form (if not in substance) from those considered by the High Court in Foster v Minister for Customs and Justice (supra). In that case, as Gleeson CJ and McHugh J pointed out at [7], there was "a double layer of satisfaction" involved in s 22(3)(e) and the relevant regulation concerning extradition to the United Kingdom. This required that the Minister "must be satisfied that he or she is not satisfied that [surrender] would be unjust, oppressive or too severe a punishment." In this case, even if the Minister is satisfied that she does not consider that surrender would be incompatible with the humanitarian considerations, she still has, under Article 7, a discretion to refuse surrender (in addition to her discretion under s 22(3)(f)). That being said, I am not convinced that these differences of form are significant. 21 What is significant is that in this case, Article 7(e) of the Surrender Agreement specifically refers to "the age, health or other personal circumstances of the person sought". The provision considered in Foster v Minister for Customs and Justice (supra)referred more generally to outcomes, that is to a punishment that would be "unjust, oppressive or too severe".

Was Minister bound to consider document examination evidence 22 The position is different in relation to the factors referred to in par 5 above. On 14 September 1999, the applicant's solicitor had provided to the Attorney-General an affidavit and report prepared by Paul Westwood, who describes himself as a "Handwriting and Questioned Document Examiner". That report reaches a tentative conclusion that signatures allegedly forged by the applicant may have been genuine. The alleged forgery was one of the charges giving rise to t-he extradition request. 23 In the exercise of the Minister's broad discretion under s 22(3)(f), she would have been entitled to take such matters into consideration. In my opinion, however, she was not bound to do so. Unlike the humanitarian considerations discussed above, the possibility of exculpatory evidence is not included as a specific consideration in the Surrender Agreement or the Act. On the contrary, the specific prohibitions on adducing exculpatory evidence before the magistrate or on a review of the magistrate's decision (see par [7] above) are inconsistent with the suggestion that the Minister was bound to consider this evidence. It is clear that the legislature intended that, provided a person is eligible for surrender (see par [7] above), the question of guilt or innocence is a matter for the extradition country.

Difficulty of determining what the Minister considered

24 The Minister is not required by the Act to provide the applicant with her reasons for decision. This raises the problem that, in the absence of reasons, it is very difficult for the Court to identify the matters that she took into account or the extent to which those matters influenced her final decision. This makes the Minister's decision difficult to review but does not render it immune; R v Secretary of State for the Home Department; ex parte Sinclair [1992] Imm AR 293 at 301. One cannot assume from the absence of reasons that the Minister's decision was affected by legal error, whether in the form of not taking into account obligatory considerations or otherwise. In this context, however, the words of Lord Keith of Kinkel in R v Secretary of State for Trade and Industry; ex parte Lonrho plc [1989] 1 WLR 525 at 540 are pertinent:

"The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the court draws the inference that he had no rational reason for his decision." 25 In this case, the absence of reasons makes it impossible for me to conclude that the Minister did not take either of the two considerations raised by the applicant into account. Importantly, the material provided to the Minister referred to both considerations.

The evidence concerning possible prison sentence 26 Attachment B contained the following passages under the heading "Mr Chan's Life Expectancy" which is in the section headed "Humanitarian Ground for Refusal to Surrender": "44. Mr Chan's solicitor submits that surrendering Mr Chan to Hong Kong would be a most inhumane thing to do, having regard to his estimated life expectancy. 45. The doctors' prognosis for Mr Chan's life expectancy range from 12 months to 'in excess' of two to three years, provided the proper medical treatment is provided and possibly as much as 5 years. None of these estimates is expressed other than in terms of 'likely prognosis'. 46. Mr Chan's solicitor says that despite Hong Kong's assertions that Mr Chan's trial could begin within 6-9 weeks of his return (see paragraph 48 below) he considers that on any reasonable basis it is unlikely that the trial would commence for at least 12 months. He says that in a trial of this size and complexity it would take at least 3-6 months to prepare Mr Chan's defence (including the evidence of the expert handwriting witness), especially having regard to the fact that new lawyers would need to be briefed and the obvious practical difficulties that Mr Chan would face being a foreigner without any financial resources. Further he says that in a case as complex as this one there would also need to be a preliminary or committal hearing. 47. Mr Chan's solicitor submits that the issue of delay and the length of time before this matter comes on for hearing is of vital consideration particularly when you consider that Mr Chan's life expectancy is about 2-5 years. If, as the solicitor says, the trial in Hong Kong takes 12 months to commence, it would mean that about one third to one quarter of Mr Chan's expected life span would be taken up by his prosecution. Further, the solicitor says that if Mr Chan is found guilty his sentence would in effect amount to a life sentence having regard to the most favourable opinion as to his life expectancy and Hong Kong's estimates of the sentence he is likely to receive if convicted (see the following paragraph). Hong Kong comments 48. The Hong Kong authorities have advised that Mr Chan should have his first appearance in a District Court within 2 to 3 weeks of his return from Australia. In the event that he pleads not guilty, it is expected that the case could be brought for trial within 4 to 6 weeks from that date. On the question of possible sentence ranges, they say that it is impossible to calculate this with any precision, but their best estimate would be in a range of 3.5 years to 5 years in the event that he is found guilty after a contested trial. They say that 'much depends on what mitigation exists and how sympathetically the sentencing judge responds to [Mr Chan's] medical condition'. … 70. We do not accept the claim that surrendering Mr Chan would be tantamount to giving him a life sentence on account of his life expectancy. The current estimates of Mr Chan's life span range from 1 to 5 years provided the proper medical treatment is provided. In addition, we note that Mr Chan's condition is currently stable and that he has had HIV disease for at least 11 years, during which according to Dr and Professor Lloyd, he was essentially asymptomatic. In view of these matters we consider that there is such uncertainty about Mr Chan's life span that no conclusions could be reached about the significance of these extradition proceedings and likely sentence in relation to the remainder of his life. We consider therefore that it is not justified in the circumstances of this case to refuse to surrender Mr Chan on the humanitarian ground based on the current speculations about how long he might live. Further, we note that Mr Chan's HIV illness and life expectancy is a matter which the Hong Kong Court would probably take into account in determining the sentence to impose if he is convicted. We also note that although Mr Chan's solicitor says that it would take 12 months for the trial in Hong Kong to commence, the Hong Kong authorities have advised that in the case of a contested prosecution the trial could commence within 6 to 9 weeks after his arrival in Hong Kong. In our view the advice of the local authorities is likely to be more accurate."

[Emphasis added] In addition, attached to the Ministerial Submission and before the Minister, was a copy of the submissions made by the applicant's solicitors on this issue. 27 It was submitted for the applicant that, even if it was difficult to draw a conclusion from the evidence, the life expectancy consideration should still have been taken into account. The Minister was required to consider whether, in her view, the sentence imposed in Hong Kong could amount to a life sentence. She was not entitled to refuse to reach a conclusion on the evidence simply because that evidence was inconclusive. Mr Wigney submitted that the passage in bold quoted above is nothing more than a statement that little or no weight should be given to the life sentence consideration in light of the uncertainty involved. 28 If the above passage had been contained in reasons prepared by or adopted by the Minister, the applicant's argument may have had some chance of succeeding. However, as noted in par [13] above, Attachment B was prepared by departmental officers and was never adopted by the Minister, despite her acceptance of the ultimate recommendation made in the Ministerial Submission. In Foster v Minister for Customs and Justice (supra), the respondent conceded that the Minister's signature on the departmental memorandum indicated her endorsement of that memorandum. No such concession was made in this case and therefore Kirby J's comment at [56] that the departmental submission could be treated as a record of the Minister's reasons is not relevant here. The material that was before the Minister, which included medical reports, would have made her aware of the applicant's life expectancy and the fact that the sentence imposed could amount to a life sentence. The issue of whether extradition should be refused on this ground was plainly raised in both Attachment B and the submissions prepared by the applicant's solicitor. 29 There is no evidence before me to suggest that the Minister did not read and consider this material before making her decision. In the absence of evidence to the contrary, there is no reason to assume that the Minister was anything other than conscientious in the discharge of her duty. I therefore assume that she read the documents provided and considered the issues raised by those documents. In particular, this is not a case where, if the Minister had considered the life expectancy consideration, she would inevitably have decided not to extradite the applicant. For example, she may have formed the view that the imposition of a life sentence would not be incompatible with humanitarian considerations or that the humanitarian considerations were outweighed by political considerations. The Minister would be entitled to authorise the extradition of the applicant on the basis of either of these conclusions.

Document examination evidence 30 I have already decided that the Minister was not bound to take the document examination evidence into account. Even if I am wrong, there is no evidence before me that proves she failed to do so. Attachment B lists various matters under the heading "Humanitarian Ground for Refusal of Surrender". It contains the following passage under the heading "Mr Chan maintains his innocence": "Mr Chan maintains that he is innocent of the charges against him and his solicitor claims that the Hong Kong authorities failed to provide the Australian government with critical documents relating to Mr Chan's innocence. Mr Chan's solicitor has enclosed a report from an expert document examiner which concludes that one of the signatures allegedly forged by Mr Chan 'may well be genuine'. The matter is also referred to in the submissions forwarded by Mr Chan's partner through Mr Ruddock (Attachment F.11). Mr Chan's partner states that 'we have positive evidence to prove that he is innocent of the case'."

31 In the final section of Attachment B, headed, "Observations", it is stated:

"Under the existing extradition regime and arrangements, the question of Mr Chan's guilt or innocence is essentially a matter to be determined upon trial in Hong Kong, and it is neither possible nor appropriate to draw conclusions on this question on the basis of the available materials." 32 Mr Westwood's report was referred to in the Ministerial Submission and a copy of the report was provided to the Minister. In particular, there is no evidence that she agreed with the observations of the departmental officers in Attachment B set out at par [31] above. For example, it is quite possible that the Minister considered the report and gave it little weight, perhaps because it was highly qualified, inconclusive and contrary to other evidence regarding the authenticity of the signatures. Without evidence, I cannot find that she ignored the report. 33 For the reasons set out above, the application is dismissed with costs. I certify that the preceding thirty three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 14 June 2001 Counsel for the Applicant: Mr D Jordan

Solicitor for the Respondent: Australian Government Solicitor