consideration
58 As stated above, the applicant's case was that there had been a failure or refusal to perform the duty to make a decision under s 22(2) because in the circumstances the only decision that could be made was to determine to refuse to surrender him to Albania. The applicant did not contend that, for some other reason, the Minister had failed to perform his duty to make a decision under s 22(2) of the Extradition Act "as soon as is reasonably practicable": compare Snedden [2014] FCAFC 156, 315 ALR 352 at [107], [128], [131]; also Hala v Minister for Justice [2015] FCAFC 13, 145 ALD 552 at [36]. The applicant's case was that the Minister's duty under s 22(2) to refuse the applicant's surrender to Albania arose no later than 29 April 2015 (when he sought to file these proceedings as foreshadowed in the letter of 22 April 2015). This was confirmed by counsel for the applicant at the hearing. For example, at page 23 of the transcript, the following appears:
HER HONOUR: … You say as at 29 April, if not earlier, there was only one decision the Minister could make.
MS DE FERRARI: Yes.
HER HONOUR: And that's the heart of your application.
MS DE FERRARI: Yes.
59 The applicant's case fails in limine. A writ of mandamus issues only to command the performance of a public duty of a public nature, which should have but has not been performed: see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30, 50 CLR 228 at 242 per Rich, Dixon and McTiernan JJ. As the High Court (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ) said in Re Australian Bank Employees Union; ex parte Citicorp Australia Ltd [1989] HCA 41, 167 CLR 513 at 515, "[m]andamus will issue to compel the performance of a public duty when there has been a refusal or failure to perform that duty": see also Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic) [1938] HCA 53, 60 CLR 741 at 749 per Latham CJ and Soliman v University of Technology, Sydney [2012] FCAFC 146, 207 FCR 277 at [52]. This is not such a case.
60 Rather, this was a case in which the process of making a decision was being actively undertaken through-out the relevant period. The Department was clearly seeking to gather sufficient reliable information in order to prepare a briefing for the Minister, on the basis of which the Minister would make the decision that he was called upon to make under s 22(2) of the Extradition Act, having regard to s 22(3).
61 The circumstances of the case, particularly the Department's correspondence with the applicant's legal representatives and with Albania, clearly showed that, although no determination under s 22(2) of the Extradition Act had yet been made, the decision-making process was in progress and that the Department was actively endeavouring to gather sufficient information to enable the Minister to make a determination under s 22(2), after considering the matters in s 22(3) as required, including, relevantly here, in s 22(3)(e).
62 The three letters on which the applicant particularly relied do not support a finding that the Minister had failed or refused to perform the duty arising under s 22(2) of the Extradition Act.
63 The Department's letter of 2 April 2015 to the Albanian Minister for Justice was essentially a request for Albania to justify its position in light of Decision No 7 of 2002 of the Albanian Supreme Court. As counsel for the Minister noted, the Department's statement in the penultimate paragraph that it "would respond … on behalf of Albania" to an application for the applicant's release from detention reflected the common practice in extradition cases in this country, whereby Australia, as the requested country, had its lawyers represent the requesting country in court, at least at the early stages of the extradition process. I would draw no inference of the kind for which the applicant argued from this letter or this particular statement.
64 The Department's letter of 24 April 2015 to the applicant's lawyers informed them of the steps taken to inform Albania of their representations on Albanian law and of Albania's responses. It advised that, in light of Albania's responses, the Department was unable to confirm that the Minister would refuse to surrender him; and instead sought further information from the applicant's representatives. I would draw no inference of the kind for which the applicant contended from this letter. The Department's inability to provide the confirmation that the applicant sought and its request for further information was a consequence of the fact that the applicant's legal representatives and Albania were advancing different views about the operation of Albanian law. The letter showed that as at 24 April 2015 the decision-making process was still on-going, since the letter itself referred to the fact that further information was expected from Albania and invited from the applicant. Further, it may be inferred from the penultimate paragraph that no briefing for the purpose of making a s 22(2) determination had been prepared for the Minister at that stage. Plainly enough, the Department did not then consider that it had sufficient information to form a view as to which opinion should be preferred.
65 The Department's letter of 20 May 2015 apparently addressed to a proposed expert on Albanian law regarding the preparation of an expert opinion evidenced that the Department had taken steps to identify and consult someone whom it considered to be appropriately knowledgeable on the relevant Albanian law, with a view to providing further reliable information about the operation of that law in the circumstances that had arisen. This was clearly a reasonable course to take in circumstances where the Department was otherwise unable to determine rationally whether the opinion of Albania or that of the applicant's lawyers should be preferred.
66 Contrary to the applicant's submission, I would not infer that the Department gave no consideration to retaining a person expert in the relevant Albanian law prior to 4 May 2015 merely from the fact that there were no documents in existence before 4 May 2015 evidencing such consideration. The matter may have been considered, without such consideration having been recorded in a contemporaneous document. Even if the Department did not consider obtaining an expert opinion until after the applicant sought to institute these proceedings on 29 April 2015, I would not infer from that fact alone that the Department's retention of an expert on Albanian law was "a litigation strategy" devised after the Minister was served with the applicant's originating application, for the sole purpose of attempting to resist the issue of the writ of mandamus.
67 Read as a whole and in the context of the surrounding circumstances, the correspondence (including the three letters to which the applicant specifically referred) evidenced that the decision-making process was on-going during the whole of the relevant period. I would infer from the correspondence in evidence that the Department sought to retain an expert as part of its attempt to resolve critical issues about the operation of Albanian law because relevant Departmental officers did not consider that these issues could be adequately answered by the information then available to them. Further, the letter of 20 May 2015 confirmed that well after 29 April 2015, when the applicant sought to commence these proceedings, the relevant the decision-making process remained on-going, since, as at 20 May 2015, the Department was seeking an expert report on the operation of Albanian law.
68 I would not, moreover, draw the adverse inferences against the Minister from the failure to call Ms Blanpain, as the applicant sought, to support findings in the terms of paragraphs [22]-[25] of the notice to admit. There is no evidence of these matters before the Court; and nor is there any evidence from which these matters might be inferred. The principle in Jones v Dunkel 101 CLR 298 is well known: an unexplained failure by a party to call a witness may, in appropriate circumstances, found an inference that the evidence of that witness would not have assisted that party's case: Jones v Dunkel 101 CLR at 308 per Kitto J, 312 per Menzies J and 320-321 per Windeyer J. While the principle may operate to make evidence or inferences that may be drawn from admissible evidence more probable, the principle does not permit a failure to call a witness (here, Ms Blanpain) to fill gaps in the evidence or transform conjecture into inference: Jones v Dunkel 101 CLR at 308, 312, 320-321; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18, 200 CLR 121 at [53] per Gleeson CJ and McHugh J; and RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [95] per Perry J. The evidentiary gap in this case is significant and the principle in Jones v Dunkel cannot fill it.
69 Accordingly, I reject the applicant's submission that there had been a failure or refusal on the Minister's part that would found a writ of mandamus.
70 There is a further reason why this application for mandamus must fail. This is not a case in which the Court would compel the Minister to make a particular decision.
71 As already indicated, before the Minister could make a determination under s 22(2) of the Extradition Act, the Minister was bound to comply with s 22(3). Sections 22(3)(e)(i) and (iii) turn on the Minister's, not the Court's, satisfaction as to the non-existence of the circumstances attracting the relevant limitation. Sections 22(3)(e)(i) and (iii) relevantly provide that "the eligible person is only to be surrendered … if … a limitation, condition, qualification or exception … has the effect that … surrender of the person … shall be refused … in certain circumstances"; and the Minister is "satisfied … that the circumstances do not exist" (emphasis added).
72 I accept, for present purposes, that Art 5 of the Treaty contains a limitation within the meaning of s 22(3)(e), namely, that "[t]he extradition shall not take place if, subsequently to … the conviction thereon, exemption from … punishment has been acquired by lapse of time, according to the laws of the State applying …" (emphasis added). The Minister did not dispute this part of the applicant's argument. Before the Minister can reach any satisfaction of the kind required by s 22(3)(e)(iii), however, the Minister needs information about the circumstances in which the limitation "had the effect" that the surrender must be refused. In this case, therefore, the Minister needs information about the meaning and operation of Albanian law (Albania being "the State applying"). In particular, the Minister needs to be informed as to the circumstances subsequent to conviction in which an offender acquires an exemption from punishment by reason of lapse of time under Albanian law.
73 The applicant's lawyers have provided the Minister with a substantial amount of material referable to this last-mentioned issue, relying amongst other things on Art 68 of the Albanian Criminal Code, Decision No 7 of 2002 of the Albanian Supreme Court and Dr Livoja's report. On the basis of this material, they contend that the Minister cannot reach the satisfaction on which s 22(3)(e)(iii) turns. That is, the applicants' lawyers contend that here the limitation under Albanian law has effect and, by reason of the lapse of time, Mr Lleshaj is exempt from punishment; and in consequence the Minister cannot be satisfied that the circumstances in which the limitation has effect "do not exist".
74 As the correspondence in evidence shows, Albania has advanced a different and inconsistent account of the operation of Albanian law, amongst other things relying on Art 504/4 of the Albanian Criminal Procedure Code and contending the Mr Lleshaj is not exempt from punishment under Albanian law by reason of the lapse of time, because the effluxion of time was interrupted by the arrest of Mr Lleshaj under an extradition warrant as part of the extradition process.
75 I note too that as at the date of the hearing the Department had not concluded its task of gathering information about the meaning and operation of the relevant Albanian law and had sought its own expert report on the meaning and operation of that law.
76 The existence of the two different and competing views about Albanian law (and the possibility that the Department will obtain its own expert report and further relevant information) demonstrates that whether or not the Minister will be satisfied that the relevant circumstances do not exist, as s 22(3)(e)(iii) contemplates, remains an open question. The meaning and operation of Albanian law is, moreover, a question of fact for the Minister to determine: compare Neilson v Overseas Projects Corporation [2005] HCA 54, 223 CLR 331 at [115] per Gummow and Hayne JJ, [185] per Kirby J and [261] per Callinan J. Much may depend on the further information that becomes available to the Department and is subsequently conveyed in a briefing to the Minister, including the expert report that the Department has sought to obtain. In these circumstances, whether or not the Minister will refuse the applicant's surrender to Albania on the basis contemplated in s 22(3)(e)(iii) or on some other basis is a matter for conjecture. Accordingly, I reject the applicant's submission that, at least from 29 April 2015, there was only one way in which the Minister could perform his duty under s 22(2) and that was to refuse the applicant's surrender.
77 As Latham CJ said in Cuming Campbell 60 CLR at 749-750, "[w]hen it is the duty of a public officer to exercise a discretion, the court may order the officer to perform his duty by exercising his discretion, but it will not control the exercise of the discretion by directing that it be exercised in a particular manner not expressly required by law". In some cases, as the applicant said, the law may require that a discretion be exercised in a particular way: see, for example, CSR v Royal Insurance 182 CLR 51, where the majority of the High Court held that since the Commissioner had already found that tax had been overpaid (182 CLR at 84) and there was a legal liability to refund the amount found to have been overpaid, the only lawful exercise of the Commissioner's statutory discretion was to refund that overpayment: 182 CLR at 88 per Brennan J, with whom Toohey and McHugh JJ agreed. The present case is not like CSR v Royal Insurance 182 CLR 51, because, as already stated, in the circumstances of the case as they currently exist, the law does not require that the Minister make a decision having a particular outcome.
78 Port Phillip Scallops v Minister for Agriculture [2015] VSC 179, on which the applicant also relied, is distinguishable too. First, the statutory context was very different to the present context. The plaintiff in that case sought an order in the nature of mandamus requiring the Minister to make a Further Quota Order under s 64A of the Fisheries Act 1995 (Vic). Rush J held (at [29]-[30]) that "the statutory regime [did] not contemplate management of the fishery by not making a further quota order" and that, in view of the Minister's delay, there had been "an abdication or abandonment of the statutory function". His Honour's reasons for making an order in the nature of mandamus cannot be applied by analogy to this case, however. This is because, amongst other reasons, there has been no "abandonment of the statutory function" since, on the evidence, the decision-making process is actively in train. Further, as counsel for the Minister noted, his Honour's discussion of the relief sought in that case does not support the applicant in this case. Citing Cuming Campbell 60 CLR at 749 (see [77] above), his Honour observed that "it has long been recognised that while courts may order a public officer to exercise a discretionary power, courts will not direct how that power is to be discharged" and his Honour's orders did not refer to any particular quota. That is, Port Phillip Scallops [2015] VSC 179 does not support the proposition that the applicant is here entitled to mandamus to compel the Minister to make a particular decision.
79 It is implicit in what I have said that I do not consider that it is open to this Court to determine whether or not the Court is satisfied as to the non-existence (or existence) of the circumstances in which, under Albanian law, the "limitation" referred to in s 22(3)(e) has effect. This is because the Parliament has not conferred this function on the Court. Rather the Parliament has conferred this function on a Minister of the Crown. Whether or not the Minister is satisfied in the terms of s 22(3)(e)(iii) is a question of non-jurisdictional fact. In this regard, the Minister's satisfaction under s 22(3)(e) of the Extradition Act is analytically the same as a magistrate's satisfaction under s 12(1) and the Attorney-General's opinion under s 16(2). See, in this regard, Bertran v Vanstone [2000] FCA 359, 173 ALR 63 at [79], [81] per Kenny J, appeal dismissed in Peniche v Vanstone [2000] FCA 1306, 101 FCR 112 at [66], see esp at [61]; Vasiljkovic v O'Connor [2010] FCA 1246, 276 ALR 326 at [66] per Edmonds J, appeal dismissed in Vasiljkovic v O'Connor (No 2) [2011] FCAFC 125 at [31], see esp [18]. If an application were made for judicial review of the Minister's satisfaction under s 22(3)(e), the Court would not determine for itself the non-existence of the relevant circumstances. Rather, the Court would examine the Minister's satisfaction to determine whether that satisfaction was formed according to law.
80 It is unnecessary and inappropriate to consider further the applicant's submissions about the content of Albanian law. It is simply not open to the Court to determine any aspect of this application on the basis of its own understanding of the meaning and operation of Albanian law: compare Bertran v Vanstone [2000] FCA 359, 173 ALR 63 at [81].
81 Accordingly, I reject the applicant's submission that a writ of mandamus should issue to require the Minister to determine, pursuant to s 22(2) of the Extradition Act, that he is not to be surrendered to Albania in relation to any of the qualifying extradition offences and to direct, pursuant to s 22(5), a magistrate or eligible Federal Circuit Court Judge to order his release.