Hala v Minister for Justice

the first ground of review: delay in making the surrender decision 8 The first ground of review alleges a delay in making the surrender decision of such a magnitude as to render the surrender decision void. The ground of review is based upon s 22(2) of the Extradition Act which relevantly provides as follows: 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. 9 The applicant went on to contend the Minister of Justice committed a jurisdictional error by failing to make the determination "as soon as reasonably practicable, having regard to the circumstances", with the consequence that the surrender decision was void. 10 The factual background relied upon by the applicant in support of this ground of review was as follows: (a) As mentioned, on 20 September 2012, the Magistrate determined that the applicant was an "eligible person" for surrender. (b) On 21 September 2012, the Attorney-General's Department requested that the applicant, by his pro bono legal representative, provide within 14 days any representations to the Minister as to why the applicant should not be surrendered to the Czech Republic. (c) On 28 September 2012, the applicant, by his legal representative, provided submissions to the department. Among the issues which the applicant's legal representative raised in his submissions were the following matters: (i) there had been an undue delay in the bringing of charges against the applicant by the Czech Republic which was unexplained, (ii) that the applicant had not left the Czech Republic as a fugitive, (iii) it would be almost impossible for the applicant to have a fair retrial if he was surrendered to the Czech Republic, (iv) the case against the applicant was not being prosecuted in good faith, (v) the applicant had serious health issues, (vi) there were lengthy delays in the Czech Republic's legal system which meant that the applicant would be held in custody for at least one year before his retrial, (vii) the prison conditions in the Czech Republic were overcrowded and there were poor medical facilities, (viii) the nature of the offence, whilst not trivial, was not such as should compel surrender. In the course of his submissions the applicant referred to a report of the Czech Helsinki Committee on prison conditions, as well as a number of international treaties, the Czech Republic Penal Code and legal authorities. The applicant's letter also enclosed a medical report and character references. (d) By a letter dated 16 October 2012, an officer of the department requested a response from the Czech Republic in relation to the issues raised in the submissions made by the applicant. This letter summarised those aspects of the applicant's submissions which related to the Czech Republic. The Czech Republic's response was received by the department on 16 November 2012. (e) During the period 16 November 2012 to 5 July 2013, the department worked on the departmental brief to be provided to the Minister. (f) On 5 July 2013, the department provided the departmental brief to the Minister. (g) On 8 July 2013, the Minister made the surrender decision. 11 The applicant points to the fact that the Minister made the surrender decision under s 22 of the Extradition Act almost eight months after the department had received the response from the Czech Republic. The applicant said that the delay of almost eight months was not attributable to his conduct. Accordingly, contended the applicant, the Minister failed to make the surrender decision under s 22 of the Extradition Act "as soon as reasonably practicable, having regard to the circumstances". This had the consequence, submitted the applicant, that the surrender decision under s 22 was void as the Minister no longer had the power to make the decision at the time that the decision was made. 12 In support of this contention, the applicant relied upon the reasons for judgment of North J in Santhirarajah v Attorney-General (Cth) (2012) 206 FCR 494 (Santhirarajah). At [77] and [80], North J observed: 77 The requirement that the Attorney-General exercise the power to surrender in a timely way, on the pain of losing the power, provides a strong incentive to the Attorney-General to act in accordance with the aim of providing a speedy process. … 80 Against this potential injustice must be balanced the consequence to Australia's extradition arrangements with other states which might result from the Attorney-General losing the power to make a determination as a result of failing to act as soon as was reasonably practicable having regard to the circumstances. That consequence, however, is in the hands of the Attorney-General. It may be avoided by the Attorney-General acting in accordance with the time limitation stipulated in s 22(2). 13 In my view, for the following reason, this ground of review fails. 14 This is because, even if the applicant was correct in his contention that the Minister had not made the surrender decision "as soon as reasonably practicable, having regard to the circumstances", such a failure would not render the Minister's decision void. 15 In the case of Snedden, Davies J, at [13]-[22] of the reasons for judgment, gave detailed consideration to an argument to like effect to that made by the applicant in this case. Davies J also considered the decision in Santhirarajah. Davies J declined to follow the decision in Santhirarajah. 16 At [21], Davies J observed: In my opinion, there is both a clear textual and contextual basis for concluding that s 22(2) should not be construed in the way that North J held. Quite plainly, the legislature intended that some temporal limitation should be imposed by s 22(2) but reference to the provisions with which s 22(2) interacts does not support the view that the legislature intended to deprive the Attorney-General of the power to make the decision required by s 22(2), because of a failure to make that decision within the stipulated time. The provisions must be considered and read together as a coherent scheme regulating the extradition process. Considered in that light, and giving effect to the words of s 22(2), the proper construction to be given to s 22(2) is that the Attorney-General, who is the repository of the power to decide whether the person is to be surrendered, must exercise the power "as soon as is reasonably practicable". That time stipulation does not condition the existence of the power but rather the time for performance of power, which is mandatory. Considerations of text, context and purpose support the construction that a breach of the section would constitute jurisdictional error amendable to prerogative relief. Such a breach would be enforceable by an order compelling the Attorney-General to perform his duty and make the decision upon which the extradition process depends for the next step: Ward v Williams (1955) 92 CLR 496 at 505-6. Considerations of the practical difficulties that a person in detention may face in taking action to compel the Attorney-General to perform his statutory duty cannot displace the plain meaning of the legislation. 17 There is nothing more that I can usefully add to the detailed analysis undertaken by Davies J, with which I agree. I specifically agree with her Honour's observations set out at [21] of the reasons for judgment. 18 It follows that ground one of the grounds of review is dismissed.

the second ground of review: factual errors 19 The second ground of review relied on by the applicant is related to his submission that there had been such a long and culpable delay by the Czech Republic in bringing criminal proceedings against him, that he should not be surrendered. 20 The applicant contended that the Minister had fallen into jurisdictional error by failing to take into account the true facts when considering whether (and if not, why not) the Czech Republic had, on a timely basis, notified the applicant of the allegations against him, issued criminal proceedings against him and/or sought his extradition. 21 This allegation was founded on statements in the departmental brief which record the response made by the Czech Republic to the invitation of the department to comment on the submissions made by the applicant. The applicant's complaint is that the departmental brief was factually erroneous because it did not take into account the true facts, namely, that the Czech Republic was aware of the applicant's presence at an address in Western Australia from at the latest 27 May 1997; that despite the department informing the Czech Republic of the applicant's whereabouts on or about 23 August 2007, the Czech Republic did not provide a response to the department, and that despite the Czech Republic stating that relevant amendments to the Criminal Procedure Code 1950 (Czech Republic) occurred in 2006 and it was resolved on 29 November 2006 to prosecute the applicant, no indictment was filed by the Czech Republic until 22 June 2009. 22 This ground of review fails for the following reasons. 23 First, the fact that the Minister may take into account factually erroneous statements contained in a departmental brief does not have the consequence that the Minister has fallen into jurisdictional error in the making of his or her surrender decision (Oates v Attorney-General (Cth) (2001) 181 ALR 559 at [133] per Lindgren J; Zentai v O'Connor (No 3) (2010) 187 FCR 495 at [362] per McKerracher J). 24 Secondly, contrary to the applicant's contention, the facts which the applicant alleged were not brought to the attention of the Minister, were contained in the departmental brief, and, thereby, brought to his attention. 25 Further, there was no requirement for the Czech Republic to explain why no prosecution could be brought until 2006. Nor was there any requirement upon the Minister to inquire of the Czech Republic as to this matter. 26 It follows that ground two of the grounds of review is dismissed.

the third ground of review: failure to consider the submission 27 The third ground of review complained that the Minister had committed jurisdictional error by failing to give fair, properly reasoned and informed consideration of the applicant's submission that he would not receive a fair trial if extradited to the Czech Republic. In essence, the complaint is that there was a failure to give genuine consideration to the applicant's submission in respect of his apprehension that he would not receive a fair trial in the Czech Republic. 28 The applicant referred to the following statements in the departmental brief which, in his view, reflect the alleged failure to consider: (a) The fact that the applicant had been tried in absentia in the Czech Republic did not preclude the Minister from exercising his discretion to surrender the applicant to the Czech Republic; (b) Having regard to comity and the appeal process, it was not a matter for Australia to assess the investigative and prosecutorial processes which led to the applicant's conviction and sentencing in absentia; (c) The appropriate forum for objections in relation to abuse of process and oppression caused by excessive delay in bringing a prosecution is the courts of the Czech Republic or the European Court of Human Rights. 29 The applicant contended that the Minister erred in the exercise of his discretion by failing to have regard to the unfairness of the lengthy delay between the date of the alleged offences and the date of the bringing of the prosecution and the trial; and treating these matters as matters for the courts of the Czech Republic and European Court of Human Rights. 30 The applicant also complained that the departmental brief was defective in that it had stated that the applicant would have an unassailable right to a retrial on his return to the Czech Republic, but did not say that the right was contingent upon him giving notice eight days after the service of the Court's judgment upon him after his return to the Czech Republic. Further, the applicant also complained that the departmental brief had not set out in detail the process for conducting a retrial in circumstances where the evidence in the first trial could not be reproduced. Nor, complained the applicant, did the departmental brief disclose any explanation by the Czech Republic as to why it had tried the applicant in his absence seven months after it had made an application for extradition. 31 This ground of review is to be dismissed because there was no obligation on the Minister to consider the matters raised in the applicant's submissions. 32 The matters in the applicant's submissions were raised by reference to s 22(3)(f) of the Extradition Act which gives the Minister a general discretion whether to surrender the eligible person. Section 22(3)(a)-(e) of the Extradition Act set out the matters to which the decision-maker is required to have regard. 33 As to the scope of s 22(3)(f), Emmett J (with whom Conti J agreed) in Rivera v Minister for Justice and Customs (2007) 160 FCR 115 observed at [14]: [T]he Minister has a general discretion whether to surrender an eligible person or not. The discretion is unfettered and the Minister may, in the exercise of the discretion, take into account any matters, or no matters, provided that the discretion is exercised in good faith and consistently with the objects, scope and purpose of the Act. 34 Accordingly, the Minister, being under no obligation to consider any specific matter in the applicant's submissions in relation to a fair trial, would not fall into jurisdictional error if he failed to give genuine consideration to the applicant's submissions. 35 However, the content of the departmental brief shows that the applicant's submissions in relation to whether he would receive a fair trial in the Czech Republic were the subject of detailed consideration and comment in the departmental brief. It could not, therefore, be said, that the Minister did not give real consideration to that question. 36 The fact that the applicant may disagree with the conclusion in the departmental brief that the question of unreasonable delay between the date of the alleged offences and the bringing of criminal proceedings by the Czech Republic and the ultimate trial, is a matter to be raised in the courts of the Czech Republic or the European Court of Human Rights, does not mean that the Minister has fallen into jurisdictional error. 37 Further, insofar as the applicant complained that the Czech Republic did not provide an explanation as to why it tried the applicant in his absence, notwithstanding that seven months prior to the trial the Czech Republic had sought the applicant's extradition, the complaint is unfounded. This is because the Czech Republic advised that the limitation period for prosecuting the applicant would have expired in 2010. This fact is set out in the departmental brief. 38 The applicant's complaint that the departmental brief did not refer to the procedural elements of the application for a retrial, and the manner in which the evidence would be dealt with at retrial, were not matters which were raised by the applicant in his submissions. No jurisdictional error can arise in relation to the failure to consider a matter which was not put before the decision-maker. 39 It follows that ground three of the grounds of review is dismissed.

the fourth ground of review: unreasonableness 40 The applicant's fourth ground of review alleges that the Minister's decision was unreasonable. 41 In support of this contention the applicant relied essentially on the fact that the applicant has been resident in Australia since 1986 and has been an Australian citizen since 1988; and that because of the effluxion of time between the alleged offences and any retrial, the applicant would be at a severe disadvantage because of the difficulties associated with investigating the surrounding circumstances of the offences, the difficulty in procuring the attendance of witnesses and the inability of witnesses to recollect the events in question. In essence, the applicant contended that the decision to surrender him to the extraditing country in those circumstances is so unreasonable as to have no legal effect. 42 The Minister had regard to matters relied upon by the applicant as demonstrating unreasonableness. The departmental brief contains a detailed discussion of the issues in relation to potential unfairness to the applicant resulting from the effluxion of time. The departmental brief discloses that the Minister had regard to, and presumably adopted, the departmental view that the appropriate forum to raise these issues would be the courts of the Czech Republic or the European Court of Human Rights. The applicant's characterisation of that approach by the Minister as unreasonable really does no more than express in emphatic terms the disagreement with the decision of the Minister, but without any legal consequence. 43 The stringent test which applies in relation to a decision being characterised as unreasonable and, therefore, of no effect, has not been met in this case (Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [67] and [76]). 44 This ground of review is dismissed.

the fifth ground of review: denial of procedural fairness 45 In his fifth ground of review the applicant complains that he was denied procedural fairness because he was not given an opportunity to comment upon the response made by the Czech Republic on 16 November 2012 to the department's invitation to comment upon the submissions which were submitted to the department by the applicant. 46 The applicant relied upon the decision in Snedden in support of his contention that the failure to provide the applicant with an opportunity to comment upon the response made by the country seeking the extradition of the eligible person, amounted to a denial of procedural fairness. 47 In Snedden, Mr Snedden was found to be a person eligible for extradition to Croatia. He had made submissions to the department as to why he should not be extradited to Croatia. The department invited Croatia to respond. It did so. The Attorney-General made a surrender decision. Mr Snedden sought judicial review. He contended, inter alia, that he had been denied procedural fairness because he had not been given the opportunity by the department to comment upon the letter of response from Croatia. Davies J found that the failure to give Mr Snedden the opportunity to comment upon the contents of the response from Croatia, amounted to a denial of procedural fairness. 48 However, in my view, Snedden is not to be taken as an authority for the proposition that, in all circumstances where an extraditing country has responded to the department's invitation to comment upon submissions made by the eligible person, procedural fairness requires that the Minister or the department give that person the opportunity to comment upon the extraditing country's response. At [40], Davies J recognised that the content of procedural fairness varies from case to case. 49 The content of procedural fairness is to be determined by the statutory background and the circumstances arising in a particular case. 50 In Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam), Gleeson CJ observed at [34]: It is not in dispute that, regardless of the letter of 7 November, the respondent was obliged to extend procedural fairness to the applicant. And it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. 51 There are cases in this Court which have discussed the content of procedural fairness in relation to the making of surrender decisions which admit the prospect that the content of procedural fairness comprises no more than the eligible person be given an opportunity to put forward all relevant matters which he or she wishes the decision-maker to take into account in determining the surrender decision; and for the extraditing country to be given an opportunity to comment upon the issues raised by the eligible person. 52 Thus, in the case of Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582, the eligible person, Mr Foster, had been given the opportunity to comment upon the response to his submission by the United Kingdom, the extraditing country. The Full Court at [70] doubted whether such a step was necessary in order to accord Mr Foster procedural fairness. 53 Further, in Santhirarajah at [339], North J observed in relation to a similar argument to that raised by the applicant in this case: Similarly, the applicant's argument that there was a denial of procedural fairness because he was not shown the US Department of Justice letter of reply dated 14 September 2009, or expressly made aware of its contents should not be accepted. The applicant did not contradict the Attorney-General's submission that the material in the letter was disclosed in the s 19 hearing. In any event, it was reasonable for the Department to determine that the process to be followed would be to seek representations from the applicant and then to seek a response from the US Department of Justice. (Emphasis added.) 54 Also, in Brock v Minister for Home Affairs [2011] FCAFC 167 (Brock), the Full Court dealt with an eligible person's contention that he had been denied procedural fairness because he had not had the opportunity to comment upon part of a departmental brief. At [22], Downes J (with whom Yates and Katzmann JJ agreed) observed: If a decision-maker proposes to act on new considerations or new matters, not known to the subject, giving the subject an opportunity to comment will generally be appropriate. However, the matters said to attract procedural fairness in this case were at the heart of Mr Brock's arguments. They were comprehensively dealt with in Mr Brock's well-written submissions. Although Mr Brock did not, of course, refer to the departmental comment, his submissions put his arguments against their conclusions. 55 Downes J's observations recognise, however, that procedural fairness may in some circumstances require that the eligible person be given an opportunity to comment upon the extraditing country's response. 56 In my view, the obligation to accord the appellant procedural fairness did not in the circumstances of this case, require that the department give the applicant an opportunity to respond to the Czech Republic's response. 57 By the letter of 21 September 2012, the department invited the applicant to make representations as to why he should not be surrendered, or about any other relevant factor the Minister should take into account in making the surrender decision. Accordingly, by the nature of his response to the invitation, the applicant had the opportunity to define the ambit of the issues which he regarded as being relevant to the Minister's decision, and to provide such information and submissions as he saw fit, in support of those issues. 58 The department's letter also advised the applicant that the information he provided may be disclosed to government agencies in Australia or foreign countries for the purpose of determining the weight to be given to his information in the extradition determination. There is nothing in the department's letter to encourage an expectation in the applicant that he would have a chance to comment upon any response from any third party, including the extraditing country, to whom the department had disclosed his information, before the third party response was used in making the surrender decision. To the contrary, the language of the department's letter conveyed the message that this was the only opportunity the applicant would have to make representations and put information before the Minister; and that once any third party response was received, the applicant's information would be weighed by reference to the response, and the decision made. 59 In my view, this is an example of a circumstance referred to by Gleeson CJ in Lam (see [50] above), of where the dealings between the parties is relevant in determining the content of the obligation to provide procedural fairness. 60 It is possible to contemplate a circumstance where the response of the extraditing country may raise an issue which is not at all germane to the issues raised by the eligible person. As anticipated in the Brock decision, this may give rise to an obligation upon the department to give the eligible person an opportunity to comment upon this extraneous issue. However, this is not the kind of case advanced by the applicant. Here the applicant complained about the denial of an opportunity to deal with matters which fell squarely within the issues identified in his initial submissions, namely, the extraordinary delay between the alleged offences, the commencement of criminal proceedings and the retrial, the Czech Republic's knowledge of his whereabouts and its culpability for the delay, the unfairness attendant thereupon, and whether the applicant had left the Czech Republic as a fugitive. 61 In my view, the requirements of procedural fairness did not, in this case, oblige the department to refer the Czech Republic's response to the applicant for further comment. 62 It follows that ground five of the grounds of review is dismissed. 63 The Court thanks counsel and those instructing counsel for the applicant, who were all acting on a pro bono basis, for their assistance. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.