Ghodskani v United States of America

Federal Court of Australia|2018-01-22|Before: Moshinsky J

The application be dismissed.
In relation to costs, each of the applicant and first respondent file and serve a written submission (of no more than two pages) within 14 days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The applicant, Negar Ghodskani (Ms Ghodskani), is the subject of an extradition request by the first respondent, the United States of America, for multiple charges alleged to have been committed from 2010 to 2012, including Conspiracy to Defraud and Commit Offence against the United States, Unlawful Smuggling of Goods, and Money Laundering. A warrant for Ms Ghodskani's arrest was issued in the United States on 8 December 2015. An extradition arrest warrant was issued in Australia on 13 April 2017. Ms Ghodskani was arrested pursuant to that warrant on 16 June 2017 and has been remanded in custody since then. 2 The application before the Court is for judicial review of a decision of the second respondent, a magistrate of the Magistrates Court of South Australia (the Magistrate), to refuse an application by Ms Ghodskani for bail. The decision under review was made on 20 December 2017. Oral reasons for decision were provided at that time. Subsequently, the Magistrate provided written reasons for the decision (the Reasons). 3 The bail application that is the subject of this application for judicial review was Ms Ghodskani's second bail application. An earlier bail application had been refused. Since the decision refusing her first bail application, Ms Ghodskani had given birth to a child (a boy). Section 15(3) of the Extradition Act 1988 (Cth) provides that if a person is remanded in custody after making an application for bail, the person cannot make another application for bail during that remand "unless there is evidence of a change of circumstances that might justify bail being granted". Ms Ghodskani contended that the birth of her son constituted such a change of circumstances. 4 As noted in the Reasons, the prisons in South Australia (where Ms Ghodskani is in custody) do not provide facilities for infants to reside with their mothers who are in custody. (The Reasons also note that such facilities are provided in some other Australian States.) Accordingly, since Ms Ghodskani's discharge from hospital and return to prison on 27 November 2017, she has been separated from her son, who was discharged into the primary care of Ms Ghodskani's husband. As a result of limitations imposed by the prison and other factors, including recent hot weather, as at the date of submissions on the second bail application, Ms Ghodskani had only had three two-hour visits with her son since her return to prison. Expert psychiatric and psychological evidence was provided to the Magistrate regarding the potential impact of the separation on Ms Ghodskani's son and the impact on Ms Ghodskani's physical and mental health and wellbeing. 5 The Magistrate was satisfied that the recent birth of Ms Ghodskani's son and their separation since her return to custody given the limitations of the custodial facilities in South Australia constituted a "change of circumstances that might justify bail being granted" for the purposes of s 15(3) of the Extradition Act and therefore that Ms Ghodskani was entitled to bring a further bail application (Reasons, [6]). 6 Section 15(6) of the Extradition Act provides that a magistrate or eligible Federal Circuit Court Judge shall not remand a person on bail under the section "unless there are special circumstances justifying such remand". The High Court of Australia held in United Mexican States v Cabal (2001) 209 CLR 165 (Cabal), at [61], that bail in extradition cases should be granted only when two conditions are fulfilled: "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. … 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." The High Court also said that "[w]hen there is a real risk of flight, ordinarily bail should be refused" and that "the risk of flight should be considered independently of the effect of the proposed bail conditions". 7 In relation to the issue of special circumstances, the Magistrate was satisfied that Ms Ghodskani had established that special circumstances existed (Reasons, [8]-[18]). 8 The Magistrate then went on to consider whether Ms Ghodskani had established that there was no real risk of flight. The Magistrate concluded that Ms Ghodskani did pose a real risk of flight (Reasons, [39]). In the course of considering this issue, the Magistrate found that, if extradited and convicted, Ms Ghodskani faces significant potential maximum penalties of imprisonment and the prospect of a lengthy period of separation from her husband and her young son during his formative years (Reasons, [29]). The Magistrate considered that the matters relied upon by Ms Ghodskani to establish the existence of special circumstances, concerning the impact of the current separation on Ms Ghodskani and her infant son, provided a "strong motive" for Ms Ghodskani to flee if released on bail (Reasons, [34]-[35], [38]). 9 As noted above, Ms Ghodskani seeks judicial review of the decision of the Magistrate to refuse the second bail application. The grounds of the application are set out in Ms Ghodskani's amended originating application. First of all, it is contended that the Magistrate acted in a way that was unreasonable, illogical or irrational in determining that Ms Ghodskani posed a real risk of flight. It is also contended that the Magistrate applied the wrong test, or identified the wrong issue or asked herself the wrong question, in determining whether Ms Ghodskani presented a real risk of flight. Lastly, it is contended that the conclusion that there was a real risk that Ms Ghodskani would flee was legally unreasonable or vitiated by illogicality. One of the particular arguments advanced on behalf of Ms Ghodskani is that: having regard to the manner in which the Magistrate approached her task, the conclusion of a real risk that Ms Ghodskani would flee entailed that she would do so leaving behind her infant son; but that conclusion cannot stand together with the Magistrate's findings that the impact of the current separation, and the prospect of a lengthy period of separation from her son, provided a strong motive for Ms Ghodskani to flee. 10 For the reasons that follow, I have concluded that each of the grounds relied on by Ms Ghodskani should be rejected. Accordingly, the application is to be dismissed.

Applicable principles relating to bail under the Extradition Act 11 Section 15 of the Extradition Act, dealing with remand, relevantly provides as follows: 15 Remand (1) A person who is arrested under an extradition arrest warrant shall be brought as soon as practicable before a magistrate or eligible Federal Circuit Court Judge in the State or Territory in which the person is arrested. (2) The person shall be remanded by a magistrate or eligible Federal Circuit Court Judge in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under one or more of sections 15A, 18 and 19 to be conducted. (3) If a person is remanded in custody after making an application for bail, the person cannot make another application for bail during that remand unless there is evidence of a change of circumstances that might justify bail being granted. … (6) A magistrate or eligible Federal Circuit Court Judge shall not remand a person on bail under this section unless there are special circumstances justifying such remand. 12 In Cabal, the High Court (Gleeson CJ, McHugh and Gummow JJ) considered issues relating to bail under the Extradition Act. Although s 15 as considered by the High Court did not refer to "eligible Federal Circuit Court Judge" or s 15A of the Act (see Cabal at [28]), it was otherwise in substantially the same terms as the current provision. 13 In the circumstances before the High Court in Cabal, which involved a pending special leave application, the High Court did not have jurisdiction under the Extradition Act to grant bail to Mr Cabal (see Cabal at [29], [34]). The High Court nevertheless had jurisdiction, derived from s 73 of the Constitution, to grant bail in the circumstances of the case (Cabal, [44]). Although the High Court was not directly dealing with an application for bail under s 15 of the Extradition Act, the Court said that, before dealing with the constitutional power to grant bail in extradition cases, it was convenient to deal with the principles for granting bail in cases falling within s 15(6) or 21(6) of the Extradition Act (Cabal, [46]). 14 The High Court reviewed the body of United States extradition cases in relation to the "special circumstances" requirement, expressing the view that these cases "give valuable guidance as to what constitutes special circumstances" (Cabal, [52]; see also [53]-[56]). Of relevance to some of the arguments raised in the present proceeding, the High Court said at [57]: In the United States, the practice is to consider the risk of flight and only then to consider whether special circumstances exist. If there is a real risk of flight, the application for bail is refused whatever the special circumstances may be. In Australia, the existence of special circumstances is an essential condition of the grant of bail. It seems proper, therefore, to determine whether special circumstances exist before considering the question of flight, a matter that is highly relevant in the exercise of the general discretion. It may be going too far to say that, if there is any risk of flight, the Act requires that bail be refused, even if there are special circumstances. In a particular situation, the special circumstances may be so cogent that bail should be granted although there is a slight risk of flight. Nevertheless, to grant bail where there is a real risk of flight could only be justified in the most extraordinary circumstances. In the vast majority of cases, the proper exercise of discretion requires the refusal of bail if there is such a risk. To grant bail where a risk of flight exists is to jeopardise Australia's relationship with the country seeking extradition and to jeopardise our standing in the international community. 15 The High Court discussed, at [58]-[62], the rationale for refusing bail in extradition cases, including by reference to Australia's international obligations. The High Court set out, at [60], a statement from the explanatory memorandum to the Extradition Bill 1987 (Cth), and said that the ever present risk of flight in extradition situations was the rationale for the "special circumstances" requirement of s 15(6). The High Court then said: 61 Given this background and the rationale for the "special circumstances" condition, bail in extradition cases should be granted only when two conditions are fulfilled. 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. When there is a real risk of flight, ordinarily bail should be refused. Further, the risk of flight should be considered independently of the effect of the proposed bail conditions. In this area of law, the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions - even rigorous conditions. A person, fearing punishment and inclined to flee, is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions. Even if the defendant has to report twice daily to the police, he or she will have a period of twelve to fourteen hours in which to leave Australia. 62 Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted. For example, the defendant may pose a risk to the community or a particular individual. In addition, bail must become harder to obtain as the case proceeds through the judicial system. Once the magistrate has found that the defendant is eligible for surrender, public interest factors similar to those that require a convicted defendant to be imprisoned also require that a defendant in extradition proceedings be kept in custody. 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. (Footnote omitted.) 16 The High Court discussed a number of cases that had been decided by the Federal Court of Australia, including Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70. After setting out a quotation from that decision, in which it had been said that the reference to "special circumstances" in the context of s 15 of the Extradition Act imparts a presumption against the grant of bail, the High Court said (at [63]): But it is probably more accurate to say, given the terms of the Explanatory Memorandum and the objects of the Act, that bail is ordinarily refused because there is a presumption that the defendant will flee the jurisdiction. 17 After setting out a passage from Holt v Hogan (No 1) (1993) 44 FCR 572, which referred to the Court being satisfied that it was not probable that the applicant would abscond, the High Court said at [70]: This statement places too low a burden on an applicant for bail. The purpose of the extradition proceedings is set at risk if an applicant is entitled to bail upon proof of special circumstances and a probability that the applicant will not abscond. If there is a real risk that the applicant will abscond, the objects of the Act and the rationale of ss 15 and 21 require the refusal of bail in all but exceptional cases. Unless the special circumstances are so cogent and the risk so very low that the proper exercise of discretion requires the grant of bail, any real risk of flight should be decisive against the grant of bail. 18 At [72], the High Court acknowledged that a court may take into account those circumstances that ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime. The High Court said that such circumstances "may be taken into account in considering the exercise of discretion after special circumstances have been established". It was emphasised, however, that "they can play no part in determining whether the applicant has established special circumstances". The High Court also said, at [74]: Once special circumstances are proved, the Court must consider all the circumstances of the case, the chief of which is the risk of flight. If a real risk of flight exists, the proper exercise of the discretion will ordinarily require the refusal of bail. Conversely, if special circumstances are proved and there is no real risk of flight, bail may be granted unless the defendant may be a danger to the community or some specific individual. In determining whether bail will be granted, one of the most important factors will be the stage which the proceedings have reached. As the case proceeds through the legal system, the chance of obtaining bail reduces, despite the existence of special circumstances. As the case against the defendant is confirmed at each step in the judicial hierarchy, the public interest in extraditing the defendant weighs more heavily against him or her. 19 The High Court said, at [76], that the principles it had discussed in relation to s 15 of the Extradition Act also applied to bail applications under s 21(6). At [77], the High Court noted that it also had jurisdiction to grant bail in extradition proceedings before it had granted special leave to appeal and that, in the exercise of that jurisdiction, the Court would be guided by the same principles as apply to an application under s 21(6) of the Act. However, the High Court stated that, even if special circumstances and the absence of risk of flight are proved, more than that is required to obtain a grant of bail before the grant of special leave (Cabal, [77]). Having formed the view that the exercise of the discretion had miscarried, the High Court, at [80]-[84], re-exercised the discretion.

The Reasons 20 As noted above, the Magistrate was satisfied that there had been a "change of circumstances that might justify bail being granted" (Reasons, [6]). The Magistrate then considered: (a) whether "special circumstances" existed (Reasons, [8]-[18]); and (b) whether there was a real risk of flight (Reasons, [19]-[39]). 21 Although the application for judicial review concerns the second of these two issues, it is necessary to refer also to the Magistrate's consideration of the first of these issues to provide proper context for some of the submissions. 22 In relation to "special circumstances", the Magistrate accepted the contents of the expert psychiatric and psychological reports provided by Professor Jon Jureidini, a psychiatrist, and Lisa Darmenia, a forensic psychologist, which had not been challenged by the United States (Reasons, [9]). This evidence was described at [10]-[15] of the Reasons. The Magistrate referred to an unchallenged affidavit of Ms Ghodskani's husband (Reasons, [16]) and concluded in relation to "special circumstances" as follows at [18]: I am satisfied that the defendant's current separation from her infant son while in custody as a result of South Australian prisons' lack of provision for infants to reside with their mothers in custody, the "significant" risks posed to [her son's] physical and mental wellbeing and development as a result of that separation as described by Professor Jureidini and the associated risks to and impacts upon Ms Ghodskani's physical and mental health and wellbeing as outlined in Professor Jureidini's and Ms Darmenia's reports and [her husband's] affidavit, constitute special circumstances which are "different from the circumstances that persons facing extradition would ordinarily endure" and are "not factors applicable to all defendants facing extradition". Accordingly, I am satisfied that Ms Ghodskani has established that special circumstances exist. (Footnote omitted.) 23 The Magistrate then turned to the second issue, namely, the risk of flight, quoting, at [19] of the Reasons, part of [57] of Cabal. The Magistrate noted that the risk of flight is to be assessed independently of the effect of any proposed bail conditions, and referred to the High Court's statement in Cabal at [61] that the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than even rigorous bail conditions. 24 The Magistrate noted, at [21], that it was not in dispute that Ms Ghodskani and her husband are Iranian citizens, that they married in Iran in 2009, and that they arrived in Australia from Iran in early 2012, Ms Ghodskani on a skilled worker visa and her husband on a spousal visa. At [21]-[26] of the Reasons, the Magistrate indicated her acceptance of a number of affidavits and other evidence relied upon by Ms Ghodskani. In the course of this part of the Reasons, the Magistrate stated in the last sentence of [25]: I note that Ms Ghodskani's capacity to travel, if granted bail, may be limited by her care for an infant. 25 At [27] of the Reasons, the Magistrate said that the "matters in Ms Ghodskani's favour must be weighed against other matters relevant to assessing whether she poses a real flight risk if granted bail". 26 At [28], the Magistrate considered the potential punishment facing Ms Ghodskani. The Magistrate stated that she had given regard to the current stage of the proceeding and the fact that Ms Ghodskani is contesting her eligibility for surrender (which is listed for hearing in March 2018). The Magistrate stated: I do not consider any reliable and probative evidence has been provided regarding the likelihood of Ms Ghodskani being extradited to or convicted in the United States and proceed on the basis that the prospects of Ms Ghodskani being extradited, convicted and, if so, the punishment to be imposed, are currently uncertain and unknown. 27 The Magistrate continued at [29]: Were the defendant ultimately extradited to the United States and convicted of the extradition offences, she faces a significant potential term of imprisonment. Were Ms Ghodskani to be extradited to the United States, no sworn evidence has been provided by the United States on which I can confidently rely as to the prospects of Ms Ghodskani's husband and son being granted a visa to enter the United States; I proceed on the basis that the prospect of visas being granted is unknown. It is conceded by the bail applicant, however, that if granted visas to enter the United States were Ms Ghodskani extradited and convicted, [her husband's] lack of financial resources render it unlikely that he and his son could remain in the United States for any significant period. Accordingly, if extradited and convicted, Ms Ghodskani faces significant potential maximum penalties of imprisonment and the prospect of a lengthy period of separation from her husband and her young son during his formative years. 28 The Magistrate then referred to the reports of Professor Jureidini and Ms Darmenia, which had been discussed earlier in the Reasons. After setting out some extracts from this evidence, the Magistrate stated at [34]-[35]: 34. As indicated, I have accepted the matters outlined in the expert reports and [the husband's] affidavit as establishing the existence of special circumstances. However I also consider these matters to equally provide strong motivation for Ms Ghodskani to flee and not answer bail, in the context of the uncertainty of the outcome of the current proceedings and in the knowledge that, if extradited and convicted, Ms Ghodskani faces a significant potential punishment and the prospect of separation from her husband and young child for a lengthy period during her son's formative years, even if her husband and son were granted entry to the United States. 35. I accept that any defendant facing extradition proceedings, who is parent to a child, confronts the prospect of separation from their partner and child if extradited, convicted and imprisoned. However, I consider the very matters outlined in Professor Jureidini's and Ms Darmenia's reports and in [the husband's] affidavit in relation to the impact of the current separation on the defendant and her infant son, while supporting the establishment of special circumstances, correspondingly provide a special and strong motive for the defendant to flee if released on bail. 29 At [37] of the Reasons, the Magistrate stated that, while accepting that Ms Ghodskani's immediate family currently reside in Adelaide, and that she and her husband have done so for the last five-and-a-half years and have developed the friendships and community connections attested to in the affidavits in evidence, the Magistrate had also given regard to the fact that Ms Ghodskani and her husband are Iranian citizens and that Ms Ghodskani's extended family lives in Iran where Ms Ghodskani was born and raised. It was noted that Ms Ghodskani's mother had recently travelled from Iran to Adelaide to assist in caring for Ms Ghodskani's infant son. 30 The Magistrate concluded her consideration of the issues at [38]-[39] as follows: 38. The onus is on the bail applicant to establish that special circumstances exist and that she does not pose a real risk of flight. I have had regard to all relevant matters and accept the unchallenged evidence produced by Ms Ghodskani, including the expert reports and [her husband's] evidence regarding the impacts of separation on the defendant and their son. As indicated, I am satisfied on the basis of that evidence that special circumstances exist given the defendant's separation from her infant son while in custody and the associated current and potential impacts of that separation on the defendant and her son. However I consider those very factors relied upon in support of special circumstances equally provide the defendant with a strong motive to flee if released on bail, given the uncertainty as to the outcome of the current proceedings, the potential punishment faced by the defendant if extradited and convicted and the associated prospect of the defendant's lengthy separation from her husband and, in particular, her infant son during his formative years. I accept that the potential for significant punishment and the associated prospect of separation from family may be present in many extradition cases. However I consider the defendant's particular circumstances as outlined in the expert reports and her husband's evidence, given the recent birth of her first child, to be both special and to correspondingly provide a particular and strong motive to flee. Further, I accept the unchallenged evidence of the defendant's husband and friends, including as to the local connections and friendships she and her husband have established over the last 5 1/2 years since their arrival in Adelaide, the good repute of those witnesses, their experience of the defendant and her husband's good character during the period of their association with them, their confidence in the defendant as evidenced by the substantial sureties offered and [her husband's] evidence as to his intentions and the defendant's stated intention not to flee if she is granted bail and the other matters put in the defendant's favour, including her lack of criminal history and the presence of her immediate family in Adelaide. However, I consider those ties and matters to be outweighed by the defendant's strong motive to flee in the context of the uncertainty of outcome of the current proceedings, in the knowledge of the potential punishment faced if extradited and convicted and the associated potential future lengthy separation from her young son during his formative years, combined with her lifelong connection to family in Iran where Ms Ghodskani was born and raised, she and her husband being Iranian citizens. 39 For these reasons, considering the risk of flight independently of the effect of potential bail conditions as required by the High Court, I consider Ms Ghodskani to pose a risk of flight if granted bail and I consider that risk to be real at this stage of the extradition proceedings.

The judicial review application 31 Ms Ghodskani relied on four grounds in her originating application as originally filed. In her amended originating application, grounds 3 and 4 have been deleted and new grounds 5 and 6 inserted. (I note that the original document was prepared before the Magistrate's written reasons for decision were available.) The four grounds set out in the amended originating application are as follows: 1. The Second Respondent committed an error of law by acting in a way that was unreasonable, or alternatively, illogical or irrational, in determining that the Applicant posed a "real risk of flight". Particulars a. In assessing whether the Applicant posed a "risk of flight", the Second Respondent: i. accepted the unchallenged evidence of the Applicant as to the Applicant's good character, and the good character of her husband; ii. accepted the unchallenged evidence of the Applicant as to her and her husband's links to the South Australian community; iii. accepted the unchallenged evidence of the Applicant's husband that neither he, nor his wife, intended to flee to the Iranian Embassy in Canberra; iv. accepted that the Applicant's immediate family resided in Australia; v. proceeded on the basis that the Applicant had no prior criminal history; and vi. accepted that there was no reliable evidence before the Second Respondent as to: 1. the likelihood of the Applicant being extradited; and 2. the consequences of any such extradition. b. Despite the findings referred to in (a), and particularly the findings referred to in (a)(vi), the Second Respondent determined that the Applicant had a strong motive to flee, based on: i. the Applicant's potential separation from her infant; and ii. the potential punishment that the Applicant faced if extradited. c. In light of the findings referred to in (a), and particularly the findings referred to in (a)(vi), the conclusions of the Second Respondent referred to in (b) were: i. unreasonable; or alternatively, ii. illogical or irrational. 2. Alternatively to Ground 1, the Second Respondent committed an error of law by applying the wrong test in determining whether the Applicant presented "no real risk of flight". Particulars a. Referring to and repeating paragraphs (a) and (b) of the Particulars to Ground 1, it can be inferred that the Second Respondent placed determinative weight upon: i. the potential punishment that the Applicant faced if extradited; and ii. the Applicant's potential separation from her infant, in assessing whether the Applicant posed "no real risk of flight". b. In so doing, the Second Respondent failed to apply the test for determining whether a person poses "no real risk of flight", as stated by the High Court in United Mexican States v Cabal (2001) 209 CLR 165 (particularly at 191 [61]). ... 5. The Second Respondent identified the wrong issue / asked herself the wrong question. Particulars a. The Second Respondent found that: i. the expert and lay evidence "in relation to the impact of the current separation on the [Applicant] and her infant son, while supporting the establishment of special circumstances, correspondingly provide a special and strong motive for the defendant to flee if released on bail" (at [35]); and ii. the Applicant's "particular circumstances as outlined in the expert reports and her husband's evidence, given the recent birth of her first child, [were] both special and … correspondingly provide a particular and strong motive to flee" (at [38]). b. Necessarily, having regard to those findings, the issue was whether there was a real risk that the Applicant would flee with her infant son. c. Erroneously, the Second Respondent considered the different issue of whether there was a real risk that the Applicant would flee. d. Relatedly, the Second Respondent failed to give any consideration to matters relevant to evaluating the risk that the Applicant would (or indeed could) flee with her infant son, and whether that risk was a real one. 6. Additionally and/or alternatively to Ground 5, the Second Respondent's conclusion that there was a real risk that the Applicant would flee was legally unreasonable and/or vitiated by illogicality. Particulars a. Having regard to the manner in which the Second Respondent approached her task, the conclusion of a real risk that the Applicant would flee entailed that she would do so leaving behind her infant son. b. That conclusion cannot stand together with the Second Respondent's findings that: i. the impact of the current separation; and ii. the prospect of a lengthy period of separation from her son, provided a special, particular and strong motive for the Applicant to flee. 32 The orders sought by Ms Ghodskani include a writ of certiorari quashing the order of the Magistrate made on 20 December 2017 refusing Ms Ghodskani's application for bail. 33 The evidence before the Court on the hearing of the judicial review application comprises: (a) an affidavit of Noosheen Mogadam (the solicitor for Ms Ghodskani) dated 21 December 2017; (b) an affidavit of Ms Mogadam dated 17 January 2018; (c) an affidavit of Lisa Hemingway (a solicitor employed by the Commonwealth Attorney-General's Department in the position of Director (Litigation) for the International Crime Cooperation Central Authority) dated 29 December 2017; and (d) an affidavit of Ms Hemingway dated 11 January 2018. 34 These affidavits, in general terms, annexed materials that were before the Magistrate. The second affidavit of Ms Mogadam annexed a copy of the transcript of the hearing before the Magistrate. The second affidavit of Ms Hemingway annexed a copy of the Reasons. 35 Each party filed an outline of submissions and a further outline of submissions. In each case, the original outline of submissions was prepared before the Magistrate's written reasons for decision had become available. The further outline of submissions of each party addressed the written reasons for decision and the amendments to the originating application proposed by Ms Ghodskani (in respect of which leave to amend was given at the hearing).

Consideration 36 I will deal in turn with each of the grounds set out in the amended originating application. I will then refer to some additional matters raised in submissions.

Ground 1 37 Ms Ghodskani's submissions in relation to this ground can be summarised as follows: (a) Following Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [68], it is clear that unreasonableness as a ground of review is not limited to decisions which fall within the formulation in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Rather, a decision will be unreasonable where it is beyond the range within which reasonable minds could agree to differ: Li at [28], [66], [110]. In the language of the joint judgment in Li, "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification": Li at [76] per Hayne, Kiefel and Bell JJ. See also at [72]. (b) In the subsequent cases of Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, the Full Court of the Federal Court provided further elucidation of the concept of "unreasonableness". See, in particular, Eden at [64]-[65]. (c) The Magistrate's decision was "plainly unjust", "lacking in evident or intelligible justification" or "obviously disproportionate". This is because, in the Reasons, the Magistrate: (i) accepted the unchallenged evidence of Ms Ghodskani as to her good character, and the good character of her husband; (ii) accepted the unchallenged evidence of Ms Ghodskani as to her and her husband's links to the South Australian community; (iii) accepted the unchallenged evidence of Ms Ghodskani's husband that he does not intend to flee to the Iranian Embassy in Canberra and that he had reported accurately Ms Ghodskani's statement that she does not intend to flee to the Iranian Embassy; (iv) accepted that Ms Ghodskani's immediate family reside in Australia; and (v) proceeded on the basis that Ms Ghodskani had no prior criminal history. In short, the Magistrate made findings as to Ms Ghodskani's good character, links to the community, and a lack of intention to flee to the Iranian Embassy in Canberra. (d) The Magistrate also accepted that there was no reliable evidence before her as to two critical factors that bore upon Ms Ghodskani's motive to flee, namely: the likelihood of Ms Ghodskani being extradited to or convicted in the United States; and, if convicted, the punishment to be imposed. (e) Despite having made these findings, the Magistrate determined that Ms Ghodskani had a strong motive to flee based on Ms Ghodskani's potential separation from her infant if extradited and the potential punishment she faced if extradited. (f) In the circumstances set out above, the Magistrate's determination that Ms Ghodskani had a strong motive to flee lacked "evident or intelligible justification". Either the Magistrate "reasoned illogically or irrationally" or she gave "disproportionate weight to some factor" (namely, the matters referred to in (e) above) in circumstances where the Magistrate had accepted that the likelihood of extradition and the potential punishment if convicted were unknown. On this basis, the Magistrate acted in a manner that was "unreasonable in a legal sense" (Li at [72]). (g) Further, a claim that a decision is sufficiently illogical or irrational so as to be infected by jurisdictional error is an allegation that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable": Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [130] per Crennan and Bell JJ. (h) The correct approach is therefore to ask whether it was open to the Magistrate to engage in the process of reasoning in which she engaged and to make the findings which she made on the materials before her. See also SZMDS at [132]; Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 at [61]-[62]. (i) Having made the findings referred to at (c) and (d) above, the Magistrate was necessarily required to give those findings meaningful weight in her determination as to whether Ms Ghodskani posed no real risk of flight. For the reasons set out at (e) and (f) above, the Magistrate did not do so. The Magistrate's failure to do so brings the situation into the category of case where "there is no logical connection between the evidence and the inferences or conclusions drawn" (SZMDS at [135]). 38 In my view, the conclusion of the Magistrate that Ms Ghodskani poses a "real risk of flight" was not unreasonable, illogical or irrational on the basis of the submissions summarised above. 39 First, I consider that the Magistrate reasoned in a logical and coherent way. Having accepted the expert evidence regarding the impact of separation on Ms Ghodskani and her infant son, it was open to the Magistrate to reason (at [34]-[35] and [38] of the Reasons) that these matters, together with the significant potential punishment Ms Ghodskani faces if extradited and convicted and the prospect (if that were to occur) of a lengthy period of separation from her young son during his formative years, provide a strong motive for Ms Ghodskani to flee if released on bail. Contrary to Ms Ghodskani's submissions, there was a logical connection between, on the one hand, the expert evidence about the impact of separation, the significant potential punishment, and the prospect of a lengthy period of separation if Ms Ghodskani were extradited and convicted and, on the other hand, the inference that Ms Ghodskani has a strong motive to flee. 40 Secondly, the Magistrate's reasons in relation to the risk of flight issue need to be read as a whole. The Magistrate set out a series of facts and matters in Ms Ghodskani's favour at [22]-[26] of the Reasons. The Magistrate said, at [27], that the matters in Ms Ghodskani's favour need to be weighed against other matters relevant to an assessment of whether she poses a real flight risk if granted bail, and considered such matters at [28]-[37]. In [38], the Magistrate brought together her consideration of all relevant matters in assessing whether Ms Ghodskani poses a real risk of flight. This was a logical way in which to reason. The Magistrate did give appropriate weight to the matters she had discussed that were considerations in Ms Ghodskani's favour. 41 It is true that the Magistrate said, at [28] of the Reasons, that she did not consider that any reliable and probative evidence had been provided regarding the likelihood of Ms Ghodskani being extradited to or convicted in the United States, and proceeded on the basis that the prospects of Ms Ghodskani being extradited and convicted (and, if so convicted, the punishment to be imposed) are currently uncertain and unknown. However, it was nevertheless open to the Magistrate to reason that Ms Ghodskani poses a real risk of flight on the basis that Ms Ghodskani faces: a significant potential punishment (albeit that the severity of such punishment is uncertain); and the prospect of separation from her husband and young child for a lengthy period of time during her son's formative years, if extradited and convicted (albeit that the duration of any period of separation is unknown): Reasons, [34]-[35].

Ground 2 42 Ms Ghodskani's submissions in relation to ground 2 can be summarised as follows: (a) As the High Court made clear in Cabal, the decision as to whether to grant bail under the Extradition Act involves the exercise of "discretion" (see Cabal at [26], [57], [74]). It is similarly clear from the High Court's treatment of the factors relevant to the "no real risk of flight" limb that the enquiry undertaken by the decision-maker is to be multifactorial and holistic: see Cabal at [80]-[84]. Two factors are explicitly mentioned in [61] of Cabal - "the history and character of the defendant and the potential punishment facing the defendant" - and properly understood, each of those factors is relevant to the analysis. (b) By virtue of the matters referred to in the submissions in relation to ground 1, it can be inferred that the Magistrate placed determinative weight upon the potential punishment that Ms Ghodskani faced if extradited and Ms Ghodskani's potential separation from her infant son in assessing whether Ms Ghodskani posed "no real risk of flight". This inference is available as a result of the conclusion reached by the Magistrate on the question of "no real risk of flight", in circumstances where the Magistrate had made findings as to Ms Ghodskani's good character, her links to the community, and her stated lack of intention to flee to the Iranian Embassy in Canberra, and the Magistrate had also accepted that there was no reliable evidence before her as to the likelihood of Ms Ghodskani being extradited, or the likely punishment if she were extradited and convicted. (c) In placing determinative weight on these two factors, the Magistrate addressed herself to the wrong question, by failing to properly address herself to the multifactorial discretionary enquiry mandated by Cabal (especially at [61]). In so doing, the Magistrate fell into jurisdictional error. 43 In my view, Ms Ghodskani has not established that the Magistrate applied the wrong test in determining whether Ms Ghodskani presented "no real risk of flight". 44 First, the Reasons make clear that the Magistrate gave close attention to the decision of the High Court in Cabal (see, eg, the Reasons at [7], [19], [20], [28]). In particular, the Magistrate gave detailed consideration to the issues of "special circumstances" and risk of flight, being the two mandatory considerations discussed by the High Court in Cabal at [61]. 45 Secondly, as noted above, the Magistrate did weigh a series of relevant factors in the course of reaching the conclusion that Ms Ghodskani poses a real risk of flight if released on bail. Factors generally in Ms Ghodskani's favour were noted at [21]-[26] of the Reasons. The Magistrate explained, at [27], that the matters in Ms Ghodskani's favour need to be weighed against other matters relevant to assessing whether Ms Ghodskani poses a real flight risk. Such other matters were considered at [28]-[37] and an overall weighing exercise was carried out at [38] of the Reasons. 46 I note that in the course of oral submissions on behalf of Ms Ghodskani it was suggested that, on the approach taken by the Magistrate, bail would be refused in every case involving the separation of a mother and her infant child. However, there are three particular features of this case that may or may not be present in other cases. First, the evidence before the Magistrate included expert reports that described the impact of separation on Ms Ghodskani and her son. Secondly, there was a concession by Ms Ghodskani before the Magistrate that, if her husband and son were granted visas to enter the United States (were Ms Ghodskani to be extradited and convicted), her husband's lack of financial resources rendered it unlikely that he and their son could remain in the United States for any significant period (see Reasons, [29]). Thirdly, in the present case, Ms Ghodskani and her husband are nationals of a foreign country and Ms Ghodskani's extended family lives in a foreign country, where Ms Ghodskani was born and raised (Reasons, [37]).

Ground 5 47 Ms Ghodskani's submissions in relation to ground 5 can be summarised as follows: (a) In considering the issue of whether Ms Ghodskani posed "no real risk of flight", the central finding of the Magistrate was that, in light of the expert reports of Professor Jureidini and Ms Darmenia, and the lay evidence given by the husband, Ms Ghodskani's separation from her infant son provided a special, particular and strong motivation for Ms Ghodskani to flee, if she were released on bail. (b) In circumstances where the central matter informing the analysis on this point was Ms Ghodskani's desire to avoid separation from her infant son, the question that necessarily arose for the purposes of discharge by the Magistrate of the task assigned to her by s 15(6) of the Extradition Act was whether there was a real risk that Ms Ghodskani would flee with her infant son. (c) However, the Magistrate only considered the question whether Ms Ghodskani herself would flee, without taking her baby with her. (d) The fact that the Magistrate considered this question (fleeing without taking her baby with her) instead of the correct question (fleeing with her baby) is shown on a plain reading of the Reasons and by what is missing from the Reasons. The Magistrate failed to give any consideration to a range of matters that would be relevant to the risk that Ms Ghodskani would, or indeed could, flee with her infant son. For example, if Ms Ghodskani did flee with her infant son, he would be: separated from his father, possibly for a very long period of time; and exposed to a very difficult life on the run from the authorities, such that, for example, it might be impossible for Ms Ghodskani to obtain urgent medical care for him, should he require it. (e) In considering the question posed by s 15(6) of the Extradition Act, the risk of flight must be a real one (Cabal, especially at [57], [70]). Further, when special circumstances are established, they "may be so cogent that bail should be granted although there is a slight risk of flight" (Cabal at [57]). Finally, if special circumstances are established, the duty of the magistrate (or judge) is to "consider all the circumstances of the case" (Cabal at [74]). (f) It follows that a theoretical possibility that Ms Ghodskani would flee, divorced from any consideration of whether she would or could do so by also taking with her a baby, is insufficient to provide a lawful basis for a decision to refuse bail. Noting that it is not possible "to mark the metes and bounds of jurisdictional error" (Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [71]) and that there is no "rigid taxonomy" of jurisdictional error (Kirk at [73]), the errors identified above are in substance no different from well-recognised kinds of error that occur when an administrative tribunal "ask[s] itself a wrong question" or fails to consider "relevant material" in such a way that its exercise of power is affected (Craig v South Australia (1995) 184 CLR 163 at 179). 48 In my view, the Magistrate did not identify the wrong issue or ask herself the wrong question as submitted by Ms Ghodskani. 49 First, I do not accept the proposition that the question that necessarily arose in the circumstances of this case was whether there was a real risk that Ms Ghodskani would flee with her infant son. The Magistrate was required to consider the risk of flight by Ms Ghodskani (Cabal at [61]). The Magistrate was not obliged to consider specifically how Ms Ghodskani might flee, nor the risk that Ms Ghodskani would (or indeed could) flee with her infant son. There is no indication in Cabal that the decision-maker is required to make any finding as to how a bail applicant would effectuate any motive to flee: see, eg, the last two sentences of Cabal at [61]. 50 Secondly, the variety of ways in which Ms Ghodskani could flee are endless. These include scenarios in which Ms Ghodskani might flee on her own and be united with her husband and infant son in another country. Thus, accepting that a central matter informing the Magistrate's analysis was Ms Ghodskani's desire to avoid separation from her infant son, it does not follow that she would need to flee with her infant son in order to be united with him. 51 Thirdly, the Magistrate did refer, at [25] of the Reasons, to the fact that Ms Ghodskani's capacity to travel, if granted bail, may be limited by her care for an infant. This indicates that the Magistrate appreciated this practical aspect of the facts and circumstances.

Ground 6 52 In relation to ground 6, Ms Ghodskani relies on the same submissions as summarised above in relation to ground 5. Additionally, Ms Ghodskani submits, in summary, as follows: (a) It follows from the submissions in relation to ground 5 that when the Magistrate reached the conclusion that Ms Ghodskani posed a "real risk of flight", it necessarily entailed that there was a real risk that Ms Ghodskani would flee by leaving behind her infant son. (b) However, this latter conclusion cannot stand together with the findings made by the Magistrate that the impact of the current separation and, even more so, the prospect of a lengthy future period of separation from her son (if Ms Ghodskani were to be extradited and convicted) provided a special, particular and strong motive for Ms Ghodskani to flee. (c) The disjunct between the findings of the Magistrate as to the impact of the current and potential future separation on Ms Ghodskani and her child, and the ultimate conclusion reached by the Magistrate that she posed a "real risk of flight", is such that either: the Magistrate's conclusion "lacks an evident and intelligible justification", so that it is unreasonable in the Li sense (Li at [76]); or, adapting the statement of Crennan and Bell JJ in SZMDS at [135], there is no logical connection between the findings and the inferences or conclusions drawn, such that the conclusion is vitiated by illogicality or irrationality. 53 In my view, this ground of review is not established. 54 First, contrary to the first proposition advanced by Ms Ghodskani as summarised above, the Magistrate's conclusion that Ms Ghodskani poses a real risk of flight did not necessarily entail any conclusion that Ms Ghodskani would flee by leaving behind her infant son. As discussed above, the Magistrate noted, at [25] of the Reasons, that Ms Ghodskani's capacity to travel, if granted bail, may be limited by her care for an infant. In light of this, I do not accept that the Magistrate assumed (or that her decision necessarily entailed) that Ms Ghodskani would, if she were to flee, leave behind her infant son. 55 Secondly, it was open to the Magistrate to reason (that is, it was not illogical to reason) as follows: (a) Ms Ghodskani poses a real risk of fleeing with her son, in order not to be separated from him; (b) Ms Ghodskani's capacity to travel, if granted bail, may be limited by her care for her infant son (Reasons, [25]); (c) nonetheless, taking into account Ms Ghodskani's limited - but not absent - capacity to travel with her son, Ms Ghodskani poses a real risk of flight. 56 Thirdly, as mentioned above in relation to ground 5, one possible scenario is that Ms Ghodskani might flee on her own and be united with her husband and infant son in another country. Thus, even if one is addressing a scenario in which Ms Ghodskani flees on her own, there is no necessary disjunct with the findings of the Magistrate as to the impact of the current and potential future separation on Ms Ghodskani and her child.

Other submissions 57 For completeness, I note some additional matters raised in the oral submissions on behalf of Ms Ghodskani that may or may not be covered by the grounds in the amended originating application. The United States objected to these matters being raised on the basis that they were not covered by that document. Nevertheless, the United States did make oral submissions in response to these matters. 58 It was submitted on behalf of Ms Ghodskani that there was no analysis by the Magistrate of whether the special circumstances might be so compelling that bail should be granted notwithstanding that there may have been a slight risk of flight, relying on Cabal at [57]. In my view, this submission should be rejected. First, the Magistrate set out, at [19] of the Reasons, the relevant part of [57] of Cabal, making clear that she did not overlook this aspect of the High Court's reasoning. Secondly, the Reasons make plain that the Magistrate did not consider the risk of flight to be slight. Rather, the Magistrate considered that the matters discussed in [34]-[35] and [38] of the Reasons provided a strong motive for Ms Ghodskani to flee if released on bail. 59 It was also submitted on behalf of Ms Ghodskani that the Magistrate failed to take into account that extradition proceedings can take many years and that (if granted bail) Ms Ghodskani would likely be on bail in Australia for many years before any extradition. The corollary was that Ms Ghodskani would not be separated from her infant son during this period and hence the strong motivation to flee would not exist. I do not accept this submission. First, there was no evidence before the Magistrate as to the likely period before any extradition. This was a matter about which evidence could have been led (for example, as to Ms Ghodskani's intended approach to the extradition proceedings). Secondly, I do not consider that the possibility of a lengthy period before any extradition undermines the force of the Magistrate's reasoning. The Magistrate found that, if extradited and convicted, Ms Ghodskani faces significant maximum penalties of imprisonment and the prospect of a lengthy period of separation from her husband and her young son during his formative years (Reasons, [29]). This informed the Magistrate's reasoning in relation to Ms Ghodskani having a strong motive to flee if released on bail (Reasons, [34]-[35], [38]). This factor still has force even if it takes some time, even years, before any extradition occurs.

Conclusion 60 For these reasons, the application is to be dismissed. I will hear from the parties on costs. [Discussion ensued in relation to costs and an order was made as set out above.] I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.

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