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.