Was Mr Hala denied procedural fairness?
38 There was no dispute that Mr Hala was entitled to procedural fairness before a decision to extradite him was made under s 22. Up to a point, there was no dispute either about the applicable principles. Broadly speaking, procedural fairness entitles a person affected by a decision "to know the case sought to be made against him and to be given an opportunity of replying to it" (Kioa v West (1985) 159 CLR 550 at 582 per Mason J). As Mr Hala submitted, procedural fairness ordinarily requires the party affected by the decision to be given the opportunity to:
(a) ascertain the relevant issues and be informed of the nature and content of the adverse material (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32], approving Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 ("Alphaone") at 590-591);
(b) deal with adverse information that is "credible, relevant and significant" to the decision to be made" (Kioa v West at 629 per Brennan J; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 ("VEAL")); and
(c) advise of any adverse conclusion the decision-maker has reached "which would not obviously be open on the known material" (Alphaone at 592).
39 Simply put, the Minister's position was that Mr Hala had already had that opportunity, and that there was nothing in the Extradition Act which required the Minister to give him a second opportunity.
40 Mr Hala accepted that a person likely to be affected by an administrative decision to which the rules of procedural fairness apply can support his or her case by appropriate information but cannot complain if the information is not accepted (Alphaone at 591). He also accepted that "fairness is not an abstract concept … the concern of the law is to avoid practical injustice" (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 ("Lam") at [37] per Gleeson CJ).
41 Yet, the allegation as pleaded in the amended originating application was put at a very high level of generality. The written submissions reflect this to some degree. Indeed, at various points in his submissions (and contrary to his summary of the law), Mr Hala seemed to suggest that in every case, regardless of the circumstances, the Minister should give a person the subject of an extradition request the right to reply to the response to his own submissions provided by the extradition country. For example, he submitted that "in a situation where there are so few opportunities to present one's case, it is important that those opportunities be maximised".
42 To the extent that Mr Hala's argument can fairly be said to extend to the proposition that a right of reply must be given in every case, it should not be accepted. The majority of the Full Court in Snedden (Middleton and Wigney JJ) rejected such an argument (at [201]) in this respect and followed the position taken by the primary judge in the present case at [48]-[49]. The primary judge was entirely correct. As his Honour observed (and Middleton and Wigney JJ reaffirmed in Snedden), the content of procedural fairness - that is to say, what will be necessary to afford the person affected by the decision an opportunity to be heard - will vary from case to case depending on the statutory background and the factual circumstances of the case at hand. His Honour also referred (at [50]) to a remark of Gleeson CJ in Lam at [34] that "the content of the requirements of procedural 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".
43 The Extradition Act does not prescribe a particular procedure for the Minister to follow when making a s 22 determination.
44 In Snedden, Middleton and Wigney JJ referred to the statutory background at [179]:
The context in which the content of the procedural fairness must be considered here is the statutory scheme for extradition in the Act and the ongoing communications between Mr Snedden and the Department. It is relevant, and potentially important, that at the s 22 stage most of the issues to be addressed by the Minister as decision-maker are fairly well defined. The matter has previously been through the first three stages of the extradition process. The person whose extradition is sought has already been found by a magistrate to be eligible for surrender and has had rights of review in relation to that decision. Many of the issues to be canvassed by the Minister at the s 22 stage would most likely have been canvassed at the s 19 stage. Significant too is the fact that s 22(3) assists by further defining the likely issues. That subsection sets out with precision the issues that the Attorney-General must consider. As a result, by the s 22 stage the person whose extradition is sought is likely to know the case he or she has to meet and the matters he or she should address in response to that case.
45 When it comes to the point of considering how the Minister should exercise the statutory discretion, however, new matters might arise. Unless those matters are known to the extraditable person or obvious, to the extent that they are adverse to the extraditable person's interests, as their Honours observed at [180], "depending on the particular circumstances", it is likely that procedural fairness would require that the decision-maker disclose them to the extraditable person. It is, of course, uncontroversial that both the person and the extradition country must be given an opportunity to make submissions. It is the number and extent of the opportunities which are in question here.
46 Mr Hala submitted that "the adversarial nature of the process increases the content of the obligation to afford procedural fairness". The same point was made in Snedden. The majority accepted that the process was essentially adversarial but said at [182] that it did not follow that the Minister was required to take the steps that a court would ordinarily be required to take, citing VEAL at [24].
47 We do not consider that in any of these respects the majority was plainly wrong. To the contrary, we agree with the majority's analysis.
48 Mr Hala's narrower argument (that the particular circumstances of this case called for a right of reply) should also be dismissed.
49 Mr Hala contended that the opportunity should have been afforded to him in this case because:
(a) some of the matters raised by the Czech Republic in its response were new, they had not previously been raised by Mr Hala, and he should have been given the chance to answer them;
(b) the advice of the Department in its Ministerial brief referred at length to the Czech response and, in particular, the letter from the public prosecutor's office, which detailed the attempts by the Czech Republic to contact Mr Hala and contained information personal to him;
(c) Mr Hala was not aware of these matters before the Minister made the surrender determination; and
(d) there was evidence before the primary judge that, had these matters been put to Mr Hala, he would have made a submission about them.
50 In his written submissions in chief Mr Hala did not identify the new matters. In oral argument, however, he indicated that the "new" information consisted of the Czech Republic's explanation for the delay in prosecuting him. In substance, that explanation was that he had fled the Czech Republic in December 1995 following the commission of the offence (but before the prosecution was instituted) and that he had evaded the authorities' attempts to bring him to justice. He pointed to the description of him in the letter from the Municipal Court in Prague as a person who had left the country soon after the offence was committed and, who for many years had been avoiding criminal prosecution:
Considering the fact that Mr. Hála has been avoiding during many years the compliance with his obligations for which he has been prosecuted and the fact that he travelled abroad shortly after the perpetration of the crimes, custody proceedings will be carried out in this matter in which he may participate at his discretion...
…
It is unambiguous that the procedures of the investigating, prosecuting and adjudicating bodies did not in any way harm the rights of Mr. Hála as he was accused of fraud causing damage amounting to more than 5 million CZK. On the contrary, these actions of his harmed other persons whom he deprived of significant funds and the damage has not been compensated in any way so far. As such, it can not be understood that there would be any unlawful interference or detriment caused to Mr. Hála in relation to the gravity of the crime as he has been avoiding criminal prosecution for many years as mentioned above and does not communicate (is out of reach) with the persons whom he allegedly damaged.
51 Mr Hala also drew attention to the references to him as an "escapee" in the letter from the Office of the Municipal Public Prosecutor and statements made in the document about unsuccessful attempts to locate him in order to interrogate him or to serve him with papers.
52 The nub of his argument, however, was that he was being wrongly characterised as a fugitive from justice. He said he wanted the opportunity to say to the Minister that the delay in prosecution had nothing to do with him.
53 There are a number of difficulties with Mr Hala's arguments.
54 First and foremost, as the primary judge observed, the information was not new. The international arrest warrant repeatedly referred to him as a fugitive and stated that he was prosecuted "in the position of a fugitive". It noted that he had left Australia at the end of 1995 and stayed here "at an unknown place". It stated that the provision of the Penal Procedure Code under which the proceedings against him had been conducted was s 302. Underneath the reference to the section was the following statement:
Proceedings under this section may be conducted against those who avoid criminal proceedings by staying abroad or by hiding themselves.
55 The warrant also alluded to unsuccessful attempts by or on behalf of the Czech authorities to locate him here. It referred to Interpol reports apparently about such attempts. In the case of one, it recorded that the report stated that an inspection at two addresses used by Mr Hala in Scarborough, Western Australia, did not provide any information about his stay "and it was not discovered whether he rented a dwelling in Perth".
56 Although the appeal books contained no explicit reference to service of the warrant, there was apparently no issue that Mr Hala had been served with it before he made his representations to the Minister for the purpose of the s 22 determination.
57 Furthermore, the supporting documents which had to be provided to Mr Hala pursuant to s 16(3) of the Act included the authenticated record of his conviction and sentence. The only document to which the Court was taken which answers this description was entitled "Judgment in the name of the Republic". It was annexed to the affidavit from Mr Hala's solicitor. It also stated that Mr Hala was "prosecuted as a fugitive". It described his current residence as "unknown". And it referred to him as having stayed "in an unknown place" in Australia since he left the Czech Republic in 1995.
58 Thus, as the Minister put it during oral argument, the fact that the Czech Republic considered him a fugitive or escapee could not have been a surprise to him. The question of his fugitive status was an issue of which he was well aware at the time he made his submission to the Minister. While he did not have an opportunity to reply to the Czech Republic's response, he not only had the opportunity to deal with the issues it canvassed, he availed himself of that opportunity.
59 In the submission to which the Czech Republic was responding (the letter of 28 September 2012), Mr Putt wrote:
Hala was not a fugitive when he left the Czech Republic for Australia in 1995 and an arrest warrant was only issued in the Czech Republic on 30 August 2010.
60 While he might have provided more information to support the assertion, he well knew at that time that his status as a fugitive was an important part of the Czech Republic's case against him. That he may not previously have been described as "escapee" is of no moment. In context, it was synonymous with "fugitive".
61 Furthermore, Mr Hala had already told the Minister that the delay had nothing to do with him. The precise words in his lawyer's 2012 letter were:
Hala is not responsible for the delay.
62 True it is once again that he might have explained why he was not responsible, but he chose not to.
63 Some particular matters disclosed in the Office of the Municipal Public Prosecutor's letter were not disclosed in the international arrest warrant. The letter stated that the police, "at the incentive of the Office of the District Public Prosecutor in Prague" asked Interpol on 30 December 1997 "again to interrogate R. Hála in the position of a suspect but did not repeatedly receive any response. As such the notification of the accusation could not be delivered to the accused, criminal prosecution could not start and the matter could not be suspended". The letter also indicated (as we understand it) that, "once the resolution on commencement of criminal prosecution was issued", attempts were made to serve Mr Hala but they failed because he did not stay at the given address. The letter continued:
The Police repeatedly asked the Interpol Prague - Interpol Canberra, Australia, to find out the current residence of the convict, however, with no results".
64 This was the reason, the prosecutor continued, the proceedings were brought against him as "an escapee" in accordance with "section 302 et seq of the Criminal Procedure Code".
65 By themselves, these were not, however, matters which were adverse to Mr Hala. Without more, the fact that the police may have had trouble locating him was entirely neutral. In any case, the purpose of the account was to explain the delay in prosecuting him. Mr Hala invited such an explanation in his representations to the Minister by stating that the Czech Republic had not provided one. This was information directed to rebut the inference that there was no explanation. There was, of course, a possible innuendo that he was evading arrest but that was the same innuendo carried by the term "fugitive" and the statement in the international arrest warrant that the proceedings could be brought against "those who avoid criminal proceedings by staying abroad or by hiding themselves". As such, the Czech response did not raise any new matter of substance.
66 Procedural fairness does not generally require that a decision-maker disclose information the substance of which is already known to the person who may be affected by the decision: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [27], [30] (Rares and Jagot JJ); VEAL at [27]-[29]. Nor does it require a decision-maker to give an affected person the chance to comment on every nuance of what the decision-maker is considering, in the same way as judges are not required to produce draft reasons for judgment to the parties for their comments: Brock v Minister for Home Affairs [2011] FCAFC 167 ("Brock") at [22] (Downes J, Yates J agreeing at [30], Katzmann J at [31]).
67 Secondly, while the "assertion" that Mr Hala was a fugitive was a credible one, there was apparently no evidence to suggest that he ever knew he was under suspicion or that the police were after him. For these reasons it is difficult to see what weight the Minister could give to the suggestion that he had fled or escaped the Czech Republic or gone into hiding in order to avoid prosecution.
68 Thirdly, contrary to the implication in Mr Hala's submissions, the mere fact that there were numerous references to the Czech response in the Ministerial brief did not mean that any information in that response was relevantly new, adverse and significant to the Minister's decision (Snedden at [202]).
69 Indeed, there is nothing to indicate that the information about which Mr Hala complained was at all significant. The Minister did not provide any reasons for his decision, so what matters he took into account in the exercise of his discretion can only be gleaned by inference (Brock at [15]). Mr Hala seems to have assumed that the Minister took into account everything the Department put to him. That may or not be the case but it is reasonable to proceed on the basis that it is. What is entirely up in the air, however, is the extent to which the Minister regarded as significant anything contained in (or more accurately annexed to) the Czech response, let alone the characterisation of Mr Hala as a fugitive from justice.
70 For a start, the Department did not treat the information as significant. It acknowledged in the Ministerial brief that "[t]he information before the Department is inconclusive as to whether Mr Hala knew of the allegations against him prior to his departure". Arguably, implicit in Mr Hala's assertion that he was not a fugitive was a representation that he did not know of them. Furthermore, the Department advised the Minister that it was open to him to consider the delay in the exercise of his discretion under s 22(3)(f). The Minister was never invited to give the information in question any weight. Nor was it suggested to him that the information was entitled to any weight. The inference to be drawn from the evidence before the Court is that the information was not significant to the Minister.
71 Fourthly, contrary to the submission made on his behalf, there was no evidence that, had these matters been put to him, Mr Hala would or could have made a submission about them. The only matter raised in argument was that he was located and interrogated by police in 1997. The letter Mr Putt wrote to the Department on 28 September 2012 asserted that the Czech authorities were aware of Mr Hala's whereabouts since at least 1997 but made no mention of any police interrogation. If there had been such an interrogation, it would be at odds with the assertion in the letter from the Office of the Municipal Prosecutor. Yet, counsel for Mr Hala conceded that there was in fact no evidence of a police interrogation.
72 Fifthly, as the primary judge observed, Mr Hala knew that his representations to the Minister might be disclosed to the Czech Republic and there was nothing in the Department's letter to Mr Hala to encourage an expectation that he would have a chance to comment upon its response before the Minister made his decision. The majority in Snedden endorsed the approach taken by the primary judge in this case.
73 The letter here was in relevantly identical terms to the letter sent to Mr Snedden.
74 It is true, as Mr Hala submitted, that the letter did not state that this was Mr Hala's "one and only" opportunity to make submissions. Nevertheless, we agree with the primary judge that the language used in the letter conveyed that message. In other words, though it may not have been explicit, it was implicit. Certainly, as in Snedden, the letter contained no representation, either express or implied, that Mr Hala would be given the opportunity to reply to anything in the Czech response. The majority in Snedden considered this circumstance significant (at [191]). Moreover, in this case, as in Snedden, Mr Hala did not ask to be provided with the Czech response so that he could comment upon it.
75 Mr Hala insinuated in his submission that it was not open to the decision-maker to limit his obligation to provide procedural fairness to one opportunity to make submissions. If that is indeed what he was putting, it is too sweeping a statement and must be rejected in the light of the majority's decision in Snedden.
76 For all these reasons we are not satisfied that the primary judge erred in concluding that the Minister denied Mr Hala procedural fairness by not affording him the opportunity to make submissions about the Czech Republic's response.