Matson v Attorney-General

REASONS FOR JUDGMENT Background [5] Procedural history [21] The hearing on 18 November 2019 [28] Applications made after the hearing on 18 November 2019 [45] The Hearing on 28 August 2020 [63] Further applications made after the hearing on 28 August 2020 [65] The Extradition Act [70] Relief under s 39B of the Judiciary Act [75] Order of consideration of the substantive and interlocutory applications [79] Consideration of the Draft Amended Originating Application [82] Non-compliance with s 22 of the Extradition Act [90] Failure to accord natural justice [100] Denial of Procedural Fairness [132] Unreasonableness [188] Irrational, illogical or arbitrary [230] Failure to take into account relevant considerations [257] Taking into account irrelevant considerations [283] Due Process [286] Bad Faith [289] Improper Purpose [296] Actual Bias [301] Apprehended Bias [304] Improper exercise of power [312] Abuse of Process [317] Failure to make enquiries [321] Failure to ask the right question [324] Other grounds [328] Grounds in support of paragraph 10 [339] Conclusion [349] Consideration of the 25 June Adjournment Application [352] Consideration of the 11 March Discovery Application [357] Consideration of the 6 July Discovery Application [386] Consideration of the 30 June Recusal Application [404] Consideration of the 16 July Reopening application [423] Consideration of the 5 August Stay Application [427] Consideration of the 19 August Adjournment Application [435] Consideration of the 15 September Reopening Application [455] Consideration of the 25 September Reopening Application [476] Conclusion [487]

RANGIAH J: 1 On 1 February 2019, the Acting Attorney-General of the Commonwealth of Australia (the Attorney-General) determined, pursuant to s 22(2) of the Extradition Act 1988 (Cth), that the applicant, Baron Matson, was to be surrendered to the United States of America (USA) in relation to certain qualifying offences (the Surrender Decision). 2 The substantive proceeding before the Court is an application for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the Surrender Decision. The hearing of that application was conducted on 18 November 2019. 3 The determination of the substantive proceeding has been delayed by a series of interlocutory applications brought by Mr Matson after the hearing had been completed and judgment reserved. These reasons will address both the interlocutory applications and the substantive proceeding. 4 It is necessary to begin by setting out the background and procedural history of the matter at some length in order to explain the issues that arise.

Background 5 On 26 October 2005, a grand jury in the USA returned an indictment charging Mr Matson, Roger Matson (his father), and another person with the following offences, carrying the following maximum terms of imprisonment: one count of conspiracy to commit mail fraud and wire fraud - 5 years; five counts of mail fraud - 20 years; nine counts of wire fraud - 20 years. 6 On 21 December 2005, another grand jury returned a superseding indictment charging Mr Matson and the others with the original offences and an additional count of conspiracy to commit money laundering, which carries a maximum penalty of 20 years imprisonment. 7 The USA alleges that between September 1997 and January 2001, Mr Matson and his co-conspirators conspired and induced persons in the USA to invest in a fraudulent investment scheme, and that they then vanished with the investors' money. 8 On 21 January 2015, Australia received a request from the USA for the extradition of Mr Matson. On 4 September 2015, the former Minister for Justice issued a notice under s 16(1) of the Extradition Act stating that an extradition request had been received for Mr Matson. A Magistrate issued an extradition warrant pursuant to s 12 of the Extradition Act, and Mr Matson was subsequently arrested on 26 October 2015 and remanded in custody. 9 On 15 January 2016, a Magistrate determined that Mr Matson was eligible for surrender to the USA in relation to the alleged offences, and ordered that he be committed to prison under s 19(9)(a) of the Extradition Act to await surrender or release. 10 On 1 February 2016, Mr Matson filed an application for judicial review of the Magistrate's decision to find him eligible for surrender (the First Instance Proceeding). Mr Matson was initially self-represented. In May 2016, I ordered that a pro bono referral certificate be issued. Mr Matson was briefly represented by pro bono counsel, but his legal representative withdrew shortly before the hearing, and Mr Matson appeared self-represented. On 21 October 2016, I dismissed the application: Matson v United States of America [2016] FCA 1245. 11 Mr Matson appealed from that judgment. He also mounted a collateral challenge to his extradition by applying pursuant to s 39B of the Judiciary Act to set aside the Minister's decision under s 16(1) and the Magistrate's decision to issue a warrant pursuant to s 12 of the Extradition Act. The Chief Justice directed that the application be heard by a Full Court. On 21 February 2017, I issued a pro bono referral certificate in respect of that application. 12 On 16 December 2016, I refused an application for bail brought by Mr Matson: Matson (Baron) v Keenan [2016] FCA 1550. Mr Matson sought leave to appeal against that judgment, although the application was not ultimately pursued. 13 Mr Matson was represented by Anthony Morris QC on a pro bono basis before the Full Court (the Full Court Proceeding). On 13 April 2018, the Full Court dismissed both the appeal and the s 39B application: Matson v United States of America (2018) 260 FCR 187. 14 On 16 April and 22 May 2018, the Attorney-General's Department (the Department) wrote to Mr Matson inviting him to make representations in relation to the decision proposed to be made under s 22(2) of the Extradition Act. On 7 June 2018, Mr Morris QC responded on behalf of Mr Matson, asking that the Department "have appropriate regard" to all of the material and submissions from the Full Court Proceeding and the reasons of that Court. It is important to note that Mr Morris QC's letter constituted the only representation made by or on behalf of Mr Matson. 15 A submission was provided by the Department to the Attorney-General on 10 January 2019 (the Departmental Submission). The Departmental Submission consisted of a front page for the recording of the Attorney-General's decision, and attachments which included the Department's advice upon the decision to be made (the Departmental Advice). 16 The Departmental Submission also attached Mr Matson's submissions in respect of the First Instance Proceeding (which were in the form of an affidavit) and the Full Court Proceeding. It also attached the reasons for judgment at first instance and of the Full Court. 17 The Departmental Advice recommended that the Attorney-General determine that Mr Matson be surrendered. 18 The front page of the Departmental Submission read, relevantly, as follows: Extradition - Determination whether to surrender Baron Matson (also known as Baron Bronstein, Philip Fletcher and Lincoln Robert Marshall) to the United States of America Deadline: While there is no statutory deadline for your decision, subsection 22(2) of the Extradition Act 1988 (Cth) (the Act) requires you to make your determination whether to surrender Mr Matson to the United States of America (US) as soon as reasonably practicable. Recommendation: The department recommends that you: (i) consider the advice at Attachment C and determine under subsection 22(2) of the Act that Mr Matson is to be surrendered to the US for the qualifying extradition offences set out in the warrant at Attachment A, and Agreed/ Not Agreed/ Discuss (ii) if you agree to (i), sign and date the warrant at Attachment A under section 23 of the Act for the surrender of Mr Matson to the US for the qualifying extradition offences stated in the warrant. Signed/Not Signed/ Discuss A/g Attorney-General / /2019 Key Issues: The US has sought the extradition of Mr Matson, an Australian citizen, to face prosecution for the offences of conspiracy to commit mail and wire fraud, mail fraud, wire fraud and conspiracy to commit money laundering. … A person is only to be surrendered under section 22 of the Act if you are satisfied that certain criteria are met and if, in your discretion, you consider that the person should be surrendered. For the reasons outlined at Attachment C the department considers it open to you to be satisfied that the preconditions for surrender are met in this case. The department further considers it is open to you to determine, and recommends that you determine, that Mr Matson should be surrendered to the US. If you so determine, section 23 of the Act requires you to issue a warrant for his surrender to the US. A surrender warrant in the statutory form is at Attachment A. Attachments: • Attachment A - Surrender warrant in statutory form. • Attachment B - Magistrate's report and order under subsection 19(9) of the Act • Attachment C - Departmental advice on the preconditions to, and grounds for refusal of, surrender. • Attachment D - Submissions filed by Mr Matson for the purposes of an application for review under s.21 of the Act • Attachment E - Submissions filed by Mr Matson for the purposes of an application for review of Rangiah J's decision • Attachment F - US' response to Mr Matson's representations dated 14 August 2018 • Attachment G - Matson v United States of America [2016] FCA 1245 • Attachment H - Matson v United States of America [2018] FCAFC 57 19 On 1 February 2019, the Attorney-General circled the words "Agreed" and "Signed" and signed the document in the space provided for his signature. He also signed and dated the Surrender Warrant on the same day. The Attorney-General, accordingly, determined under s 22(2) of the Extradition Act that Mr Matson be surrendered to the USA for the qualifying offences set out in the Surrender Warrant. 20 The Attorney-General did not expressly state his reasons for making the Surrender Decision. However, as he adopted the Department's recommendation that Mr Matson should be surrendered, and as the Department's reasons for that recommendation were contained in the Departmental Advice, the Attorney-General apparently adopted that advice. It should be inferred that the Departmental Advice reflects the Attorney-General's reasons for making the Surrender Decision.

Procedural history 21 On 11 February 2019, Mr Matson filed his present application under s 39B of the Judiciary Act, seeking, inter alia, that the Surrender Decision be quashed and the Attorney-General be prohibited from giving effect to that decision. The application was prepared by Mr Morris QC, again acting pro bono. 22 A case management hearing was held on 1 March 2019. Mr Matson was represented by Mr Morris QC. I made orders for the exchange of material and setting down the matter for hearing on 22 July 2019. 23 In an affidavit sworn on 15 July 2019, Mr Matson deposed that upon reading the submissions prepared by Mr Morris QC, he had become concerned that certain arguments had not been formally raised in the grounds of the application or in the submissions. Mr Matson sought to have the hearing adjourned so that he could file an amended originating application and submissions. On 22 July 2019, I made orders relisting the hearing for 30 September 2019. 24 At the commencement of the hearing on 30 September 2019, Mr Morris QC indicated that he had been instructed to raise a range of issues, but was not satisfied he could properly advance allegations of bias and misconduct on the part of officers of the Department. Mr Morris QC sought a further adjournment of the hearing. He also sought orders granting leave to file two sets of submissions, one containing arguments he felt he could properly advance and another to be drafted by Mr Matson containing the other arguments. He also sought leave to file an amended originating application. Over the respondent's objection, I adjourned the hearing to 18 November 2019 and ordered that Mr Matson file and serve the two sets of submissions proposed and a proposed amended originating application. 25 The orders made on 30 September 2019 for the filing of material were not complied with, and the Attorney-General's lawyers had the matter listed for a case management hearing on 21 October 2019. Mr Morris QC appeared for Mr Matson, and I made an order requiring the proposed amended application and submissions be filed by 28 October 2019, and a further order that if Mr Matson failed to comply the matter would proceed to hearing on the basis of the originating application and the submissions already filed. 26 On 29 October 2019, Mr Morris QC provided the Attorney-General's solicitors with a draft proposed amended originating application. 27 On 7 November 2019, Mr Matson filed another draft amended originating application (the Draft Amended Originating Application). The Draft Amended Originating Application was prepared by Mr Matson himself and significantly expanded the relief sought and the grounds of the originating application. The document contains in excess of 60 "particulars" in support of the grounds of relief. The particulars are in fact separate grounds, alleging denial of natural justice or procedural fairness, bad faith, improper purpose, actual and apprehended bias, unreasonableness, irrationality and illogicality and other grounds. As that document was not filed within the time allowed under the order of 21 October 2019, it will be necessary to consider whether leave should be granted to file that document.

The hearing on 18 November 2019 28 The hearing of the substantive proceeding took place on 18 November 2019. At the commencement of the hearing, Mr Morris QC stated that he had just seen the Draft Amended Originating Application prepared by Mr Matson, and that he was not willing to agitate those grounds. Mr Morris QC applied for leave to withdraw, and that leave was granted. Mr Matson represented himself for the remainder of the hearing. 29 Mr Matson requested an adjournment of the hearing on the basis that certain documents had not been disclosed to him under a number of Freedom of Information (FOI) requests. In order to understand this issue, a brief history of Mr Matson's FOI requests is required. 30 In 2018, Mr Matson made approximately 12 FOI requests under the Freedom of Information Act 1982 (Cth) with respect to documents and communications in the possession of the Department referring to him and his father, Roger Matson. Relevantly, the Department determined that 108 documents existed in relation to Mr Matson and his father in FOI Requests FOI18/023, FOI18/082, FOI18/202 and FOI18/203, a number of which were disclosed to Mr Matson (the 2018 FOI Documents). Mr Matson was dissatisfied, and sought review of the FOI decisions by the Office of the Australian Information Commissioner (the OAIC). Whilst the OAIC was conducting those reviews, the Attorney-General made the Surrender Decision on 1 February 2019. The Attorney-General had not been asked by Mr Matson to refrain from making that decision pending the completion of the review process. 31 On 4 July 2019, Mr Matson was provided with four Revised FOI Decisions from the Department, which indicated that fresh searches had revealed 181 documents relevant to his FOI Requests, a number of which were disclosed to Mr Matson, albeit in a heavily redacted form (the 4 July FOI Documents). Mr Matson alleges that the 4 July FOI Documents included over 70 additional documents, the existence of which had not been disclosed to him in the various FOI decisions made in 2018. I will adopt Mr Matson's description of these over 70 additional documents as the "Withheld Documents". He also asserts that the 4 July FOI Documents were provided with different descriptions, different dates and different page numbering compared to the 2018 FOI Documents, such that he could not determine which documents he had already received. Mr Matson subsequently requested that the Department provide him with the 4 July FOI Documents in chronological order, and indicate which of those documents comprised the Withheld Documents. 32 A letter dated 6 November 2019 from the Department to Mr Matson attached the 4 July FOI Documents, but now with a footer that included the FOI decision reference and pagination (the 6 November FOI Documents). At the hearing, Mr Matson claimed to have only received the documents on 15 November 2019, three days prior to the hearing. He claimed that he was not able to determine which documents had already been provided to him in 2018, such that he could not ascertain which documents were the Withheld Documents. 33 Mr Matson submitted that he should have received the Withheld Documents prior to the making of the Surrender Decision on 1 February 2019, and that the failure of the Department to provide him with those documents was a denial of procedural fairness. I questioned whether the fact that Mr Matson had not received the Withheld Documents under the FOI process prior to the making of the Surrender Decision was relevant to the issue before me, namely the legality of the Surrender Decision. Mr Matson submitted that it was relevant because he may have been able to use the Withheld Documents in submissions to the Attorney-General, and that may have influenced the Attorney-General's conclusion regarding his extradition. 34 Mr Matson sought to tender the 6 November FOI Documents at the hearing, but I did not allow the tender at that stage. I indicated that it was for Mr Matson to identify the documents which he contended might have assisted his submissions to the Attorney-General, and it was not for the Court to trawl through the documents to determine which, if any, might assist his case. 35 Mr Matson requested an adjournment of the hearing on the basis that the 6 November FOI Documents were different from the 4 July FOI Documents, and he required time to compare them. The Attorney-General contended that the 6 November FOI Documents were the same as the 4 July FOI Documents, the only difference being that the 6 November FOI Documents included a footer with the FOI decision reference and were paginated. Mr Matson accepted that was the case. The Attorney-General opposed the application for an adjournment. 36 I refused the adjournment. I considered that as Mr Matson had the same documents since 4 July 2019, he should have been able to identify the documents he wished to make use of for his argument by the time of the hearing. Despite this, I indicated that I would allow Mr Matson to make written submissions and provide an affidavit after the hearing concerning any specific documents he wanted to rely on. I considered that this would allow him adequate additional time to correlate the documents with schedules of documents he had been provided with by the Department. 37 Mr Matson then sought an adjournment of the hearing until two matters before the High Court of Australia had been decided. Judgment in those matters was later published on 11 February 2020 as Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 (Love and Thoms). Mr Matson had filed and served a notice under s 78B of the Judiciary Act, and submitted that a significant constitutional issue arose in relation to the, "unique obligation of protection owed by the Crown to an Aboriginal society and requiring it to protect each member of that society". The relevance of the High Court proceedings was stated to be that Mr Matson identifies as an Aboriginal person, and that the Attorney-General had an implied obligation to consider his Indigenous heritage when making the Surrender Decision as Mr Matson may be permanently separated from Australia and his community if extradited to the USA. The proceedings in the High Court in Love and Thoms were concerned with whether Indigenous Australians are within the reach of the "aliens" power conferred by s 51(xix) of the Constitution. I did not allow the adjournment because I was not satisfied that those proceedings had sufficient relevance to the matter in this Court. However, I indicated that Mr Matson could make written submissions if the High Court's judgment was handed down prior to the delivery of my judgment. 38 Mr Matson did not rely upon the draft amended application prepared by Mr Morris QC, but sought to rely on the Draft Amended Originating Application that he had prepared himself. The Attorney-General opposed leave being granted to file that document in view of Mr Matson's non-compliance with the guillotine order made on 21 October 2019. I indicated that I would allow Mr Matson to make submissions upon the merits of the grounds in the Draft Amended Originating Application, and that I would reserve my judgment as to whether leave should be granted to rely upon it. 39 Mr Matson then objected to the substantive hearing proceeding on that day as he said he was under the impression that the matter had only been listed for a directions hearing. That asserted impression was misplaced, as the matter had clearly been set down for a substantive hearing. The matter had originally been listed for a substantive hearing on 30 September 2019, but on that day Mr Morris QC had applied for an adjournment. I then made an order that, "The hearing of the matter be adjourned to 10.15am on 18 November 2019". Mr Matson was present in Court when the order was made. Having regard to the context of the submissions that had been made by Mr Matson's counsel on that day, I did not accept that Mr Matson could reasonably have thought the matter had been listed for directions, rather than hearing of the substantive matter, on 18 November 2019. 40 Mr Matson also claimed that with the withdrawal of Mr Morris QC, he had been, "suddenly thrust to the Bar and then asked to take over the whole matter with no notice". I did not accept that claim because on 30 September 2019, Mr Morris QC had said that he was only prepared to argue certain issues, and it was clear that Mr Matson would himself have to argue other issues he wished to pursue. On 30 September 2019, I had made orders requiring the filing of two sets of written submissions, one containing submissions Mr Morris QC felt he was able to argue, and the other containing other submissions Mr Matson wished to argue. Mr Morris QC filed a set of written submissions (which Mr Matson later adopted) and Mr Matson also prepared written submissions in support of the grounds of the Draft Amended Originating Application. Those submissions were contained in Mr Matson's affidavits sworn on 4, 9, 11, 20, 23 and 24 September, 21 October and 4 November 2019. I did not accept that Mr Matson could reasonably claim to have been taken by surprise by the necessity to present his case concerning the grounds in the Draft Amended Originating Application at the hearing on 18 November 2019. 41 Mr Matson's affidavits largely consisted of submissions in support of his Draft Amended Originating Application. The Attorney-General objected to these affidavits on the basis that they contained submissions, and in addition were, "at best, Mr Matson's opinions and at worst, pure speculation". The Attorney-General also objected to an unsworn affidavit of Mr Matson dated 16 September 2019 which he sought to rely upon at the hearing. I indicated during the hearing that I would consider and rule upon these objections in my reasons for judgment and will do so now. 42 Section 76(1) of the Evidence Act 1995 (Cth) provides that, "Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed". Mr Matson's affidavits substantially consist of passages beginning "I verily believe" or "I believe". These expressions generally precede either submissions about matters of law, or inferences that Mr Matson seeks to have drawn from asserted facts. Although expressed as opinions, I think they are better recorded as submissions or assertions. Apart from referring to paragraph numbers, the Attorney-General did not indicate precisely which passages he objected to. I consider that the most expedient way to proceed is to reject the objections and to simply treat the submissions contained in the affidavits as submissions. I will consider the inferences contended for by Mr Matson, but will not draw such inferences where they are unsupported by the facts. I do not consider that this course will disadvantage the Attorney-General. If I were to simply rule that large parts of the affidavits are inadmissible and refuse to take the affidavits into account, procedural fairness would, in my opinion, require that Mr Matson, as a self-represented litigant, be given an opportunity to file further affidavits and separate submissions. The course I propose to take will allow his affidavits to be considered in full and used for such purposes, and given such weight, as is appropriate. 43 Mr Matson also made oral submissions at the hearing. At the conclusion of the hearing, I made orders allowing Mr Matson to file a further affidavit limited to addressing the 6 November FOI Documents, as well as further submissions (not exceeding ten pages), and allowing the Attorney-General to file any affidavit in reply and further submissions. 44 On 24 December 2019, Mr Matson filed submissions which exceeded the page limit. He also filed three affidavits, sworn on 19 and 20 December 2019 and 2 January 2020, the first of which was over 300 pages in length. The submissions also went beyond the scope of the orders, and raised arguments unrelated to the 6 November FOI Documents. Despite that, bearing in mind that Mr Matson was by then self-represented, I consider that the interests of justice require that I should consider these submissions and affidavits. The Attorney-General has had the opportunity to respond to them.

Applications made after the hearing on 18 November 2019 45 On 13 January 2020, after judgment had been reserved, Mr Matson notified the Court that Julian Burnside QC had expressed an interest in providing him with legal advice and representation. Mr Matson wrote to the Court to request that a pro bono referral certificate be issued and that the matter be listed for a further final substantive hearing. An affidavit sworn on 29 January 2020 was filed by Mr Matson in support of this request. Mr Matson was advised that I did not intend to issue a pro bono referral certificate, and was not willing make any other orders in the absence of any application. 46 Mr Matson filed an interlocutory application on 10 February 2020 seeking a temporary stay of the proceedings until an instructing solicitor could be engaged to brief Mr Burnside QC, an order that the matter be listed for a further final substantive hearing and other orders. 47 The interlocutory application was accepted for filing and listed for mention on 4 March 2020. Mr Matson was self-represented at that hearing. He handed up a draft amended interlocutory application, which was prolix. Mr Matson also sought to make a bail application. I made orders allowing the filing of an amended interlocutory application which succinctly set out the orders he sought, as well as affidavits and submissions which addressed the interlocutory application and the bail application. 48 On 11 March 2020, Mr Matson filed an amended interlocutory application dated 5 March 2020 (the 11 March Discovery Application). The interlocutory application sought orders, inter alia, for the listing of the matter for a further final substantive hearing, the production of a number of documents and discovery. 49 The interlocutory application and the bail application were listed for hearing on 8 April 2020. Prior to the hearing date, Mr Matson secured legal representation. The parties reached agreement upon orders adjourning the hearing of the 11 March Discovery Application and the bail application to 25 June 2020. 50 The interlocutory hearing was conducted on 25 June 2020. Mr Matson was represented by Mr Burnside QC and Damien Freeman of counsel. Mr Burnside QC indicated that the application for bail was not pursued. 51 Mr Burnside QC commenced by applying for an adjournment of the hearing (the 25 June Adjournment Application). That application was based upon Mr Matson having an application on foot in the Administrative Appeals Tribunal (the AAT) that might produce disclosure of the FOI documents being sought in the discovery application. The adjournment was opposed by the Attorney-General. I refused the adjournment application. I indicated that I would provide my reasons at a later date. 52 Mr Burnside QC then proceeded to make submissions upon the 11 March Discovery Application. Mr Burnside QC submitted that the application for discovery was not an application to reopen the proceeding. I refused the application for discovery. I indicated that I would provide my reasons for that refusal when I delivered judgment in respect of the substantive proceeding (which, at that stage, I anticipated would be within a fairly short time). 53 However, on 29 June 2020, the Court received correspondence from Mr Matson indicating that he would be proceeding again as a self-represented litigant, and seeking to file a further interlocutory application and supporting affidavit. This interlocutory application, dated 29 June 2020 and filed on 6 July 2020 (the 6 July Discovery Application), was substantially the same as the 11 March Discovery Application that had been decided on 25 June 2020, except that it also sought discovery of some additional documents. I made orders on 3 July 2020 requiring Mr Matson to file written submissions as to whether the interlocutory application should be accepted for filing, and indicated that I would deal with that issue on the papers. 54 The Court received correspondence from Mr Matson dated 30 June 2020 seeking that I recuse myself from the matter and raising various other matters. I considered that the correspondence should be treated as an application for my recusal (the 30 June Recusal Application). 55 The Court received further correspondence from Mr Matson dated 7 July 2020, which enclosed an application seeking leave to appeal from my judgment made on 25 June 2020, and a draft notice of appeal. This application was provided to the National Operations Registrar for allocation to another judge. 56 The Court then received another bundle of correspondence from Mr Matson dated 10 July 2020, enclosing submissions prepared under the orders made on 3 July 2020 and an affidavit in support of the 6 July Discovery Application. It also enclosed a new interlocutory application dated 10 July 2020 filed on 16 July 2020 seeking that the 11 March Discovery Application be reopened and relisted for hearing and bail (the 16 July Reopening Application). 57 On 30 July 2020, I decided to make orders revoking the orders made on 3 July 2020, and listing the 6 July Discovery Application, the 30 June Recusal Application and the 16 July Reopening Application for hearing on 28 August 2020. 58 Mr Matson then sent an originating application dated 28 July 2020 to the Court for filing. The relief sought is similar to that sought in the Draft Amended Originating Application, although it also seeks the issue of writs of habeas corpus and mandamus. It also seeks a stay of the proceedings in this matter. Some new grounds are also alleged, although a number are substantially similar to grounds relied upon in the Draft Amended Originating Application. The originating application was referred to the National Operations Registrar for allocation to another judge. 59 The Court received further correspondence from Mr Matson enclosing a new interlocutory application dated 2 August 2020, filed on 5 August 2020, which sought vacation of the procedural orders made on 30 July 2020, and a temporary stay of these proceedings and each of the applications filed by Mr Matson following the hearing on 25 June 2020 (the 5 August Stay Application). 60 Mr Matson was notified that I did not intend to vacate the orders made on 30 July 2020. The remainder of the 5 August Stay Application was listed for hearing with the other applications on 28 August 2020. 61 The Court received further correspondence from Mr Matson enclosing a further interlocutory application dated 13 August 2020, filed on 19 August 2020 (the 19 August Adjournment Application), which sought, inter alia, an adjournment of the hearing listed on 28 August 2020 and an extension of time for compliance with the orders made on 30 July 2020. The 19 August Adjournment Application was listed for hearing with the other applications on 28 August 2020. 62 On 21 August 2020, the Court received further correspondence from Mr Matson enclosing ten requests for leave to issue subpoenas. Mr Matson was notified that the subpoena requests would be addressed at the hearing on 28 August 2020.

The Hearing on 28 August 2020 63 Mr Matson was self-represented at the hearing on 28 August 2020. Mr Matson commenced by addressing the 19 August Adjournment Application, and sought an adjournment on ten grounds. I refused the adjournment. I will provide my reasons for refusing the adjournment later in these reasons. 64 Mr Matson then proceeded to argue his remaining interlocutory applications, save that he did not seek to have his bail application determined that day and did not address the subpoenas. I reserved judgment in respect of those applications, and will consider them later in these reasons.

Further applications made after the hearing on 28 August 2020 65 The Court received further correspondence from Mr Matson on 10 September 2020 enclosing a new interlocutory application dated 10 September 2020, filed on 15 September 2020, seeking that the substantive proceeding and various interlocutory applications be stayed until an originating application dated 6 September 2020 was heard and determined; that the substantive proceeding be "reopened" due to fresh evidence coming to light; and that further discovery be ordered (the 15 September Reopening Application). I note that an originating application dated 6 September 2020 has not been received by the Court, although an originating application dated 1 September 2020 has been filed (seeking judicial review of a decision of the OAIC concerning Mr Matson's request for review of an FOI Decision) and allocated to another judge. In the absence of any indication as to whether an originating application dated 6 September 2020 actually exists, I infer that the 15 September Reopening Application was intended to refer to the originating application dated 1 September 2020. 66 I made orders for the filing of submissions in relation to the 15 September Reopening Application, and indicated that following the receipt of submissions, I would determine whether the application should be determined on the papers, or whether there should be an oral hearing. I consider that the matter should be determined on the papers, and will do so later in these reasons. 67 On 18 September 2020, Peter Bubendorfer of counsel filed a notice of acting which indicated that he had been appointed to represent Mr Matson in the proceedings to bring an interlocutory application to hear further submissions and make an application for bail. An application for bail had already been brought before another judge in the proceedings filed on 28 July 2020. 68 A further interlocutory application prepared by Mr Bubendorfer and dated 25 September 2020 was filed, seeking an order granting Mr Matson leave to reopen the proceedings and leave to make further submissions as to error of law on the part of the Attorney-General (the 25 September Reopening Application). The application was not accompanied by a supporting affidavit or any particulars. I made orders for the filing of submissions and indicated that following the receipt of submissions I would determine whether the application should be determined on the papers. I consider that the application should be determined on the papers, and will do so later in these reasons. 69 Given the number of interlocutory applications filed by Mr Matson in these proceedings following the final hearing, I considered it appropriate to make an order on 2 October 2020 that no further interlocutory applications be filed without the leave of the Court until judgment was delivered.

The Extradition Act 70 In Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389, the Full Court explained that there are four stages in extradition proceedings under the Extradition Act. The first stage is commencement, either by the issue of a provisional warrant under s 12(1), or by the giving of a notice under s 16(1). The second stage is remand, in that, once arrested, s 15 requires that the person be taken before a Magistrate and remanded in custody or on bail. The third stage is determination by a Magistrate of eligibility for surrender pursuant to s 19 of the Act. The fourth stage is executive determination pursuant to s 22 as to whether the person is to be surrendered. The decision under challenge was made by the Attorney-General at the fourth stage. 71 Section 22 of the Extradition Act provides, relevantly: (1) In this section: eligible person means a person who has been committed to prison or released on bail: (a) by order of a magistrate or eligible Federal Circuit Court Judge made under section 18; or (b) by order made under subsection 19(9) or 21(2A) (including because of an appeal referred to in section 21), where no proceedings under section 21 are being conducted or are available in relation to the determination under subsection 19(9) to which the order relates. qualifying extradition offence, in relation to an eligible person, means the following: (a) if paragraph (a) of the definition of eligible person applies - any extradition offence in relation to which the person consented in accordance with section 18; (b) if paragraph (b) of the definition of eligible person applies - any extradition offence in relation to which: (i) the magistrate or Judge who made the order under subsection 19(9); or (ii) the court that conducted the final proceedings under section 21; determined that the person was eligible for surrender within the meaning of subsection 19(2); (c) in any case - any extradition offence in relation to which the person has consented in accordance with section 19A. (2) 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. (3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if: (a) the Attorney‑General is satisfied that there is no extradition objection in relation to the offence; and (b) the Attorney‑General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture; and (c) where the offence is punishable by a penalty of death - by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable: (i) the person will not be tried for the offence; (ii) if the person is tried for the offence, the death penalty will not be imposed on the person; (iii) if the death penalty is imposed on the person, it will not be carried out; and (d) the extradition country concerned has given a speciality assurance in relation to the person; and (e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that: (i) surrender of the person in relation to the offence shall be refused; or (ii) surrender of the person in relation to the offence may be refused; in certain circumstances - the Attorney‑General is satisfied: (iii) where subparagraph (i) applies - that the circumstances do not exist; or (iv) where subparagraph (ii) applies - either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and (f) the Attorney‑General, in his or her discretion, considers that the person should be surrendered in relation to the offence. 72 The phrase "extradition objection" referred to in s 22(3)(a) is defined in s 7 of the Extradition Act as follows: 7 Meaning of extradition objection For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if: (a) the extradition offence is a political offence in relation to the extradition country; or (b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions or for a political offence in relation to the extradition country; or (c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions; or (d) assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or (e) the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence. 73 Section 22(3)(e) refers to s 11, which provides: 11 Modification of Act in relation to certain countries (1) The regulations may: (a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or (b) make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications, other than such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country. 74 The Extradition (United States of America) Regulations 1988 (Cth) (the USA Extradition Regulations) give effect to a bilateral extradition treaty between Australia and the USA. The "Treaty on extradition between Australia and the United States of America" (the USA Extradition Treaty) is contained in Sch 1 of the USA Extradition Regulations.

Relief under s 39B of the Judiciary Act 75 Mr Matson's Draft Amended Originating Application seeks relief under s 39B of the Judiciary Act. That section provides, relevantly: 39B Original jurisdiction of Federal Court of Australia Scope of original jurisdiction (1) …the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: … (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. … 76 The Draft Amended Originating Application seeks a writ of prohibition against the Attorney-General, as well as other relief. A writ of prohibition cannot be issued unless jurisdictional error is established: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [70]. 77 In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, the plurality at [24] described jurisdictional error as, "a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it". The plurality held at [29] that where a statute confers decision-making authority, "The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance". Their Honours stated at [30]: …the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made… 78 In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, the plurality confirmed at [45] that, "A breach is material to a decision only if compliance could realistically have resulted in a different decision".

Order of consideration of the substantive and interlocutory applications 79 These reasons require consideration of the grounds for review of the Attorney-General's decision under s 22(2) of the Extradition Act contained in the Draft Amended Originating Application (ie the substantive application) and each of the interlocutory applications filed since the hearing of the substantive application took place on 18 November 2019. 80 I propose to consider the applications in chronological order, as follows: The Draft Amended Originating Application; The 11 March Discovery Application; The 25 June Adjournment Application; The 6 July Discovery Application; The 30 June Recusal Application; The 16 July Reopening Application; The 5 August Stay Application; The 19 August Adjournment Application; The 15 September Reopening Application; and The 25 September Reopening Application. 81 I will provide my reasons for judgment in respect of the substantive application first because that will assist to place the subsequent interlocutory applications in context. However, I emphasise that the order in which my reasons are set out does not reflect the order in which I decided the applications. I decided the interlocutory applications before deciding the substantive application.

Consideration of the Draft Amended Originating Application 82 At the hearing on 18 November 2019, Mr Matson made oral submissions upon the grounds in the Draft Amended Originating Application, as well as relying upon the written submissions filed by Mr Morris QC and the written submissions contained in his own affidavits dated 15 July, 4, 9, 11, 16, 20, 23 and 24 September, 21 October and 4 November 2019. Mr Matson also relied on affidavits filed after the hearing dated 19 and 20 December 2019 and 2 January 2020. 83 The Draft Amended Originating Application sets out four grounds in support of the relief sought. The application then sets out some 60 particulars of the ground relied upon. Although stated to be particulars, they amount to separate grounds of judicial review. I will treat them as comprising grounds of review. 84 The Draft Amended Originating Application was filed on 7 November 2019. The Attorney-General submitted that Mr Matson should not be allowed to rely on the Draft Amended Originating Application because of his non-compliance with orders made on 21 October 2019 requiring the document to be filed by 28 October 2019. I indicated at the hearing that, despite the non-compliance, I would allow Mr Matson to rely on the Draft Amended Originating Application if the grounds had sufficient merit. 85 The grounds raised in the Draft Amended Originating Application are set out below: A. that procedures that were required by law to be observed in connection with the making of the Surrender Decision and issuing of the Surrender Warrant were not observed; B. that the Surrender Decision and issuing of the Surrender Warrant were not authorised by the enactment in pursuance of which they were purported to be made; C. that the Surrender Decision and issuing of the Surrender Warrant involved an error of law; and D. that the Surrender Decision and issuing of the Surrender Warrant were otherwise contrary to law, in that: The Applicant contends in support of paragraphs 1 through 9: Particulars (a) Contrary to subsection 22(2) of the Act, the decision that the Applicant be surrendered to the United States of America in purported pursuance of section 22 of the Act: (i) was not made as soon as was reasonably practicable, having regard to the circumstances, after the Applicant became an eligible person; and (ii) was not made, or not made exclusively, in relation to a qualifying extradition offence or qualifying extradition offences. (b) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a "failure to accord natural justice" on the basis that the Acting Attorney-General overlooked a substantial clearly articulated argument relying upon established facts (such argument may also be referred to as 'material', 'evidence' or 'information'), namely the Applicant's argument 'put on record' that any surrender order would be "unjust, oppressive or too severe a punishment"...by reason of delay...and further that any punishment in the US would be likely to be unjust and oppressive and too severe a punishment by virtue of the maximum penalties set there and also the sentencing regime, which has a tendency to accumulate sentences; and because of the Applicant's indigenous heritage that would have an effect on him being incarcerated for any lengthy period there…; (c) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a "failure to accord natural justice" on the basis that the Acting Attorney-General overlooked a substantial clearly articulated argument relying upon established facts, namely the Applicant's specific argument that "a sense of false security engendered in the defendant is also a relevant consideration" in determining whether extradition was unjust or oppressive, which argument was clearly raised in the Applicant's affidavit filed in QUD 89 of 2016. (d) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a "failure to accord natural justice" on the basis that the Acting Attorney-General overlooked a substantial clearly articulated argument relying upon established facts, namely the Applicant's argument that there was the potential of "torture, cruel and unusual punishment" in violation of the Applicant's fundamental human rights protected under Article 7 of the International Covenant on Civil and Political Rights (ICCPR) which was clearly raised in the Applicant's affidavit filed in QUD 89 of 2016 and raised in the Applicant's further amended originating application filed in QUD 569 of 2016. (e) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a "failure to accord natural justice" on the basis that the Acting Attorney-General overlooked a substantial clearly articulated argument relying upon established facts, namely the Applicant's argument that his constitutional implied rights protected under the Constitution were being violated, including the constitutional implied right to protection from cruel and unusual punishment, particularly in consideration of the total charges amounting to 305 years and the real likelihood of the Applicant receiving a disproportionately excessive sentence if convicted in the US...The constitutional implied rights argument was clearly raised in the Applicant's affidavit filed in QUD 89 of 2016 and also raised in the Applicant's further amended originating application filed in QUD 569 of 2016. (f) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness "hearing rule" on the basis that over 180 documents containing "new" material that was adverse to the Applicant and that was "credible, relevant and significant" to the Surrender Decision were not provided to the Applicant prior to the Acting Attorney-General's Surrender Decision of 1 February 2019, which documents the Applicant had sought access to well before the Surrender Decision of 1 February 2019 via the correct legal process provided under the Freedom of Information Act 1982 (Cth)… (g) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness "hearing rule" on the basis that other additional documents in relation to the Applicant were also withheld, including extradition related documents…in relation to the Applicant from 2005; and one (1) additional previously withheld document provided by a foreign state in relation to the Applicant for during the period of 2007 to 2009 which were "critical" to the Acting Attorney-General's Surrender Decision, as such documents also contained "new" material that was adverse to the Applicant, and that was "credible, relevant and significant" to the Surrender Decision; (h) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness "hearing rule" on the basis that the Applicant was provided twenty 'misleading official communications' throughout his dealings with the Attorney-General's Department, mainly in relation to his FOI requests. Significantly, most often such communications were provided to the Applicant by the "Unit Head" of the International Cooperation Unit, Stephen Bouwhuis, Assistant Secretary; (i) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness "hearing rule" on the basis that "all submissions and material" the Applicant had filed for the purposes of his judicial review applications before the Full Federal Court were not annexed to or adequately summarised in the 'Ministerial brief' put before the Acting Attorney-General…This would include all applications and amended applications, notices of appeal, submissions and affidavits filed in QUD 89, 569 and 844 of 2016 and QUD 51 of 2017. The "Appeal Books" filed for QUD 844 of 2016 and QUD 51 of 2017 were both also omitted from the "Ministerial brief" put before the Acting Attorney-General; (j) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness "hearing rule" on the basis that the Applicant's "representations" prepared on his behalf by Anthony J. H. Morris QC, dated 7 June 2018 were not put before the Acting Attorney-General in the 'Ministerial brief' as was indicated would happen in the Attorney-General's Department "Invitation" letter dated 16 April 2018…; (k) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'bad-faith' and 'improper purpose'; and or 'actual bias' or alternatively an 'apprehension of bias' on the basis that there was an undisclosed 'conflict of interest', namely that David Reed did not disclose his longstanding prior involvement as the Attorney-General's Department Legal Case Officer handling the Attorney-General's Department files 'Roger Matson and others' during the period of 2003 to 2005, which files were in relation to the Australian domestic prosecution and investigation of the Applicant and his father…; (l) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'bad-faith' and 'improper purpose'; and or 'actual bias' or alternatively an 'apprehension of bias' on the basis that there was another undisclosed 'conflict of interest', namely that Stephen Bouwhuis did not consider that he had a longstanding involvement in multiple FOI communications, FOI decisions and FOI internal review decision in relation to the Applicant during 2018, and then gave legal advice and made recommendations in the 'Ministerial brief' in relation to the Applicant's surrender determination…; (m) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'bad-faith' and 'improper purpose'; and or 'actual bias' or alternatively an 'apprehension of bias' on the basis that the Applicant was provided twenty 'misleading official communications' throughout his dealings with the Attorney-General's Department, mainly in relation to his FOI requests and most often such communications were from Unit Head of the International Cooperation Unit, Stephen Bouwhuis, Assistant Secretary; (n) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'bad-faith' and 'improper purpose'; and or 'actual bias' or alternatively an 'apprehension of bias' on the basis that the "misleading official communications" from Mr Bouwhuis not only informed the Applicant that credible, relevant and significant documents did not exist when in fact those documents did exist, but also informed the Applicant that credible, relevant and significant documents did exist (namely 400 documents in relation to to the Applicant for during the period of 2007 to 2011) when in fact those documents did not exist... (o) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'unreasonableness' or was 'seriously irrational and illogical' on the basis that the Acting Attorney-General failed to give sufficient weight to the Applicant's Indigenous heritage and to the consequences and likely hardship caused to the Applicant and his family as First Nations people by surrendering him to the US, potentially permanently separating him from his family, community, culture and country; (p) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'unreasonableness' or was 'seriously irrational and illogical' on the basis that the Acting Attorney-General misconstrued Article V of the Treaty by failing to properly form the opinion or requisite state of satisfaction that surrendering the Applicant to the US was in fact "proper to do so" in his particular circumstances… (q) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'unreasonableness' or was 'seriously irrational and illogical' on the basis that the Acting Attorney-General relied upon the department's 'Ministerial brief' which specifically raised the Applicant's Indigenous heritage in the context of Article V of the Treaty, and therefore required the Acting Attorney-General to give proper, genuine and realistic consideration to the Applicant's Indigenous heritage in determining whether or not to exercise his discretion under Article V of the Treaty to refuse the Applicant's surrender on grounds of "Nationality", which the Acting Attorney-General did not do. The Acting Attorney-General rigidly and inflexibly applied the Government's policy of not refusing extradition on grounds of "Nationality" without fairly or properly considering the merits of the Applicant's individual case, particularly his Indigenous heritage and his "special connection" to Australia; (r) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'unreasonableness' or was 'seriously irrational and illogical' on the basis that the Acting Attorney-General failed to consider that the US Government failed to provide, and the Commonwealth failed to request the US Government to provide a formal written assurance that the over 3 years already served in maximum security prison would be guaranteed to be deducted from any finite sentence imposed upon the Applicant if he was convicted in the US…; (s) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'unreasonableness' or was 'seriously irrational and illogical' on the basis that the Acting Attorney-General in totality of the circumstances, failed to properly consider all of the facts and circumstances of the Applicant's case and thereby failed to discharge his statutory duty to exercise his discretion reasonably; (t) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'unreasonableness' or was 'seriously irrational and illogical' on the basis that the Acting Attorney-General failed to consider that the US Government failed to provide, and the Commonwealth failed to request the US Government to provide a further formal written assurance that the Applicant would not be exposed to receive a disproportionately excessive sentence from the Florida Federal Judge the Applicant would come before, particularly as the Applicant's charges amount to some 305 years in total and the US sentencing regime which allows and has a tendency to accumulate sentencing; (u) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General failed to consider any analysis of the applicable 'Australian Standard' in the circumstances of the Applicant's individual case, including the fair trial Australian standard or from a likely punishment if convicted Australian standard, and in consideration of the Applicant's Indigenous heritage, which because of his Indigenous heritage it would have an effect on him if he was incarcerated for any lengthy period of time in the US. This is particularly relevant in view of the US sentencing regime which has a tendency to accumulate sentences and in circumstances where the Applicant had previously raised his concerns and 'put on record' his belief that any surrender order would be unjust, oppressive or too severe a punishment; (v) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) acted unreasonably in the exercise of his discretion, or constructively failed to exercise jurisdiction by failing to exercise his discretion or failing to consider whether to exercise his discretion to refuse extradition on grounds of "Nationality" under Article V(1) of the Treaty, or alternatively to exercise his general discretion to refuse extradition under s 22(3)(f) of the Extradition Act 1988 (Cth) particularly in consideration of the Applicant's indigenous heritage and "special connection" to Australia. (w) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) excluded or completely discounted factual material from the evidence proffered by the Applicant on the incorrect basis that it was irrelevant, thereby committing an error of law; (x) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) his exclusion of factual material was wholly irrational and arbitrary, and was tantamount to a refusal to consider a matter, thereby committing an error of law; (y) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) failed to comply with his statutory "duty to consider" all of the Applicant's evidence and arguments which was an implied mandatory consideration derived from the scope, subject-matter and purpose of the Extradition Act 1988 (Cth); (z) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) misconstrued the meaning of the word "proper" as an ordinary English word in the context of Article V of the Treaty, thereby committing an error of law; (aa) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) his conclusion that it was "proper" to surrender the Applicant to the US was, on the material before him, a view of the facts that could not "reasonably be entertained" and amounted to an error of law; (bb) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) was for an improper purpose and was an "abuse of process" on the basis that the delay in seeking the Applicant's provisional arrest and the delay in formally requesting the Applicant's extradition was unjustified and attributable to the US Government, and that there was a lack of candour and obfuscation in explaining the delay, specifically in view that the US Department of Justice had been provided the Applicant's fathers address in 2003, and had access to the Applicant and his father's location at any time via the Australian Federal Police and/or via the Attorney-General's Department; (cc) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) his evaluation or judgment went beyond the range where it could have permissibly gone either way, thereby committing an error of law; (dd) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) constructively failed to exercise jurisdiction by failing to think about mandatory considerations, deciding for an improper purpose, deciding irrationally and by failing to engage with the Applicant's evidence, arguments and contentions, thereby committing an error of law; (ee) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) treated express and implied mandatory factors irrationally and illogically, and upon the evidence that was before the Respondent, no reasonable decision-maker would have made the same factual inferences or conclusions, amounting to jurisdictional error; (ff) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) did not direct himself or ask himself the right question in relation to the legal consequences and the likely hardship to be caused to the Applicant and his family by surrendering the Applicant to the US, particularly in consideration of the Applicant's indigenous heritage and his "special connection" to Australia, thereby committing an error of law; (gg) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) failed to make an obvious inquiry about a critical fact, namely the sentencing regime in the US, the existence of which could have been easily ascertained, particularly as there was evidence that such an enquiry would have made a difference to his requisite state of satisfaction required to be formed under Article V(l) of the Treaty that in the circumstances it was "proper" to surrender the Applicant, and in exercising his general discretion under 22(3)(f) of the Extradition Act 1988 (Cth); (hh) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) rigidly and inflexibly applied a policy position resulting in the Respondent failing to give proper, genuine and realistic consideration to the Applicants indigenous heritage and "special connection" to Australia; and further failed to consider the legal option provided for under Article V(l) of the Treaty of refusing extradition on grounds of "Nationality" and that the very existence of the discretion provided under Article V(l) of the Treaty is a reflection of an expectation that some Australian citizens in light of their individual circumstances, should not be surrendered to the US and should alternatively be prosecuted in Australia as provided under Article V(2) of the Treaty; (ii) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) adopted a wrong legal test and took account of irrelevant considerations including knowingly incorrect facts and other knowingly false, misleading, inadequate and incorrect legal advice outlined in the department's 'Ministerial brief'; (jj) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) erred when assessing the consequences and likely hardship faced by the Applicant including the "relative risk" of the Applicant receiving a custodial sentence in the US that was grossly disproportionate, amounting to cruel and unusual punishment in violation of the Applicant's fundamental human rights under Article 7 of the ICCPR and in violation of the Applicant's constitutional implied right to be protected from cruel and unusual punishment under the Constitution; (kk) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) constructively failed to exercise jurisdiction by failing to take account of relevant/mandatory considerations: (i) arguments, evidence and contentions raised in the material and submissions filed in the Applicant's judicial review applications QUD 89, 569 and 844 of 2016 (including evidence and material filed in the Applicant's bail application on 16 December 2016 in matter QUD 569 of 2016), referred to in the Applicant's representations dated 7 June 2018 which were omitted from the legal advice and analysis outlined in the department's 'Ministerial brief'; (ii) the historical Attorney-General's Department, Australian Federal Police, US Department of Justice, F.B.I. and INTERPOL documents, files, communications and correspondence between 1997 to 2019 in relation to the Applicant and his father's extradition matter; (iii) the Applicant's contentions 'put on record' during the Applicant's s 19 hearing that any surrender order would be unjust and oppressive...by reason of delay...and further that any punishment in the US would be likely to be unjust and oppressive and too severe a punishment by virtue of the maximum penalties set there and also the sentencing regime, which has a tendency to accumulate sentences; and because he is of indigenous heritage and that would have an effect on him being incarcerated for any lengthy period there; (iv) the established principal that when the requesting government can be shown to have been inexcusably dilatory in taking steps to bring the defendant to justice, then this may serve to establish the necessary injustice and oppressiveness, whereas the issue may be left in some doubt if the only known fact relates to the passage of time. A sense of false security engendered in the defendant is also a relevant consideration. If actions of the Government have led him to believe that he will not be extradited then it may be oppressive if the government then proceeds to try to do so…; (v) implied mandatory considerations derived from the scope, subject matter and purpose of the Extradition Act 1988 (Cth), including Australia's non-refoulment obligations under the ICCPR and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) which the Respondent was 'bound' to consider in circumstances where the Applicant had specifically raised evidence, arguments and contentions of torture, cruel and unusual punishment under Article 7 of the ICCPR on the basis of the potential 305 years prison sentence in the US, and the likelihood of "solitary confinement" in the US which has been found to constitute "torture" and "cruel and unusual punishment" in the US; and (vi) that the Applicant had already served over three years on remand in a maximum security prison in Australia while contesting extradition, which had cost the Applicant his livelihood, his home, his relationships and his reputation in the North Stradbroke Island community, which was unjust and oppressive. The Respondent was 'bound' consider any hardship that potentially affected the interests of the Applicant; (ll) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General failed to accord the Applicant 'due process', by not considering the arguments, evidence and contentions raised in the Applicant's material and submissions he filed for the purposes of his judicial review applications QUD 89, 569 and 844 of 2016 and QUD 51 of 2017 referred to in the Applicant's representations dated 7 June 2018, which representations had specifically asked the Respondent to have appropriate regard to such material and submissions in support of why the Applicant should not be surrendered to the US. The failure to accord 'due process' effectively denied the Applicant a "meaningful" opportunity to advance his case, and further denied the Applicant the opportunity to put information, evidence and make arguments to the Minister…; (mm) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General's decision was unreasonable: (i) in the Wednesbury sense, on the basis '... that no reasonable person could ever have come to it, and that no sensible decision maker acting with due appreciation of his responsibility would so decide'; (ii) on the basis that the Respondent failed to properly deliberate in the exercise of his discretion and thereby failed to discharge his statutory duty to properly consider all of the facts and circumstances of the Applicant's case in making his decision; (iii) in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) the Respondent oppressively and gratuitously interfered with the Applicant's fundamental rights in a way that could not be reasonably justified…; (iv) on the basis that the Respondent failed to show respect for the dignity of the Applicant as an Indigenous Australian citizen, or show respect for the dignity of the Applicant's family by giving no consideration to the Applicant's "special connection" to Australia; or to the grave consequences and hardship likely to occur if the Applicant was surrendered to the US; and (v) on the basis that the Respondent accepted the department's recommendation to surrender the Applicant, without seeking further information or requesting to "discuss" the Applicant's indigenous heritage and "special connection" to Australia, particularly when the department's 'briefing paper' (which the Respondent relied upon), failed to provide any analysis of the relevant factors to take into account when considering the grave consequences and hardship likely to occur to an indigenous Australian citizen if permanently separated from family, community, culture, land and country. The self evident fact that Australia is the "spiritual place" of the Applicant, was a significant issue that was not considered in the department's legal advice, nor was it considered by the Acting Attorney-General in making the Surrender Decision. (nn) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General's decision was seriously "irrational" and "illogical" as in making the decision he failed to give sufficient weight to a number of factors, including: (i) inadequate or insufficient "weight" was given to the Applicant's evidence, arguments and contentions raised in all material and submissions filed in the Applicant's judicial review applications before the Full Federal Court QUD 89, 569 and 844 of 2016 and UD 51 of 2017 including the material and submissions filed by the Applicant for the purpose of his "bail application" made in matter QUD 569 of 2016 which was on appeal before the Full Federal Court in matter QUD 51 of 2017. The Applicant's representations dated 7 June 2018 specifically requested the Respondent have appropriate regard to all material and submissions filed by the Applicant for the purposes of his judicial review applications, however the majority of the material and submissions filed by the Applicant for the purposes of his judicial review applications were omitted from the legal advice and analysis outlined in the department's 'Ministerial brief'…; (ii) inadequate or insufficient "weight" was given to the Applicant's indigenous heritage and "special connection" to Australia, or to the Applicant's contentions 'put on record' at his s 19 hearing that any surrender order (emphasis added) would be unjust, oppressive or too severe a punishment, or incompatible with "humanitarian considerations" (namely because of the Applicant's indigenous heritage and that any lengthy sentence would have an effect on him); (iii) no consideration or "weight" was given to the applicable 'Australian standard' as to whether extradition of the Applicant would in the circumstances be unjust, oppressive or too severe a punishment, or incompatible with "humanitarian considerations" namely because of the Applicant's indigenous heritage and that any lengthy sentence would have an effect on him. No legal advice or analysis was provided in the department's 'Ministerial brief' of the applicable 'Australian standard'…; (iv) inadequate or insufficient "weight" was given to the Applicant's fundamental human rights protected under international law, including the US Government's "flagrant" violation of the Applicant's fundamental human rights protected under Article 14(3)(a) and (c) of the ICCPR in handling of the Applicant's substantive criminal proceedings in the US which required the US Government to "promptly notify" the Applicant of the nature and cause of the charges laid against him, and to ensure there was no "undue delay" in bringing the Applicant's matter to trial; and (v) inadequate or insufficient "weight" was given to the Applicant's right to a fair trial in the US or to the applicable 'Australian Standard' of a fair trial, including to the prejudice faced by the Applicant in the US, which can be presumed after such a lengthy delay. The concept of 'fairness' and its underlying principles have continued to be developed and established by the High Court of Australia, notwithstanding, irretrievable prejudice and unfairness is now faced by the Applicant because of the almost 20 year delay, which was caused by the US Government's decision not to promptly seek the Applicant's provisional arrest and the US Government's further decision not to promptly formally request the extradition of the Applicant; (vi) no consideration or "weight" was given to Australia's non-refoulment obligations under the ICCPR and CAT which the Respondent was 'bound' to consider in circumstances where the Applicant had specifically raised evidence, arguments and contentions of torture, cruel and unusual punishment under Article 7 of the ICCPR and the CAT on the basis of the potential 305 years prison sentence in the US, and the likelihood of "solitary confinement" in the US which has been found to constitute "torture" and "cruel and unusual punishment" in the US. (oo) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) infringed the constitutional implied rights of the Applicant protected under the Constitution, including the Applicant's constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment…; (pp) The Surrender Decision was affected by and reflects jurisdictional error because it was an improper exercise of power as the Acting Attorney-General failed to observe implied limitations of its exercise imposed by the Constitution, international customary law and the common law, including the implication the power be exercised in good faith and with respect for the dignity of the Applicant and First Nations people; (qq) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) failed to observe the "Public Interest" in the fair administration of justice, Government integrity, accountability and transparency, particularly when an indigenous Australian citizen is facing the largest potential prison sentence ever faced by an Australian citizen in Australian legal history, some 305 years. (rr) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) violated the Applicant's constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment protected under the Constitution by failing to consider the lack of good faith (or alternatively the lack of bona fides) of both the US Government and the Commonwealth Attorney General's Department ICCCA and ICU, particularly evidence of "bad faith", "wilful neglect of duty", "collusion", "abuse of process", "abuse of power" and "executive lawlessness" relating to: (i) the US Governments deliberate delay in duly notifying the Applicant of the charges, and decision not to request the Applicant's provisional arrest or to request the Applicant's extradition within a reasonable period of time; (ii) the Commonwealth Attorney-General's Department ICCCA deliberate delay in duly notifying the Applicant of the US charges and in ensuring that provisional arrest was requested by the US after foreign arrest warrants had been issued for the Applicant in 2005, so as to give the Applicant fair notice that he had been charged with serious offences and to enable the Applicant to defend those charges in a timeous manner...; (iii) knowingly false, incomplete, misleading and incorrect information provided by the US Government to the Commonwealth Attorney-General's Department ICCCA and ICU in relation to the Applicant and his father's whereabouts; (iv) that the knowingly false, incomplete, misleading and incorrect information provided by the US Government was known to be false by the Commonwealth Attorney-General's Department ICCCA and ICU, yet was still willingly provided to the Respondent in the department's 'Ministerial brief'; (v) the US Government's deliberate attempts to "cover-up" the true nature of the delay and the true extent of the lengthy involvement of the AFP, F.B.I., INTERPOL, USDOJ and Commonwealth Attorney-General's Department ICCCA during 16 years of mutual assistance and international joint investigation since early 2000; (vi) the Commonwealth Attorney-General's Department ICCCA deliberate attempts to "cover-up" the true nature of the delay and the true extent of the lengthy involvement of the AFP, F.B.I., INTERPOL, USDOJ and the Commonwealth Attorney-General's Department ICCCA during 16 years of mutual assistance and international joint investigation; (vii) that the knowingly false, incorrect, misleading and contradictory information had been provided by the USDOJ to the United States District Court for the Middle District of Florida in relation to the whereabouts of the Applicant and his father, which plainly contradicts the legal advice, analysis and information provided in the department's 'Ministerial brief'; (viii) that two (2) Senior Officers at the Attorney-General's Department had an apparent 'conflict of interest' in their significant involvement in the extradition process, namely Mr David Reed, ICCCA Director of Litigation and Mr Stephen Bouwhuis, Assistant Secretary, "Unit Head" International Cooperation Unit; and (ix) the multiple 'misleading official communications' provided to the Applicant from the Attorney-General's Department in relation to the Applicant's FOI requests during the period of 2017 to 2019 which misled the Applicant in relation to the number of relevant documents that were captured by the scope of the Applicant's FOI requests, and also denied the Applicant the opportunity to employ such documents in his representations to the Attorney-General in support of his argument as to why he should not be surrendered to the US; (x) that a "litigation strategy" has been put in place by Stephen Bouwhuis "Unit Head" of the Attorney-General's Department International Cooperation Unit to obstruct the Applicant's access to relevant documents in relation to himself, and his father and the extradition proceedings, which denied the Applicant equality before the law and has resulted in a practical injustice, substantial unfairness and violated the Applicant's constitutional implied rights, and fundamental human rights protected under Article 14 of the International Covenant on Civil and Political Rights (ICCPR). (ss) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) failed to observe the Commonwealth of Australia's international obligations as a United Nations member and under international treaties Australia has ratified, and the "legitimate influence" they have on Australia's common law and on Australia's modern interpretation of the Constitution, including: (i) United Nations Charter: Preamble [United Nations Charter Act]; (ii) International Covenant on Civil and Political Rights (ICCPR): Preamble and Articles 2, 5, 7, 9, 14, and 26 [Australian Human Rights Commission Act 1986 Schedule II - ICCPR]; (iii) ICCPR First Optional Protocol; (iv) International Convention on the Elimination of All Forms of Racial Discrimination (ICERD): Preamble and Articles 1, 2, 5, 6 and 7 [Racial Discrimination Act 1975 Schedule I - ICERD]; (v) United Nations Declaration of the Rights of Indigenous People: Preamble and Articles 2, 7, 15, 17, 19, 25, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 46. (vi) United Nations Model Treaty on Extradition 1990: Article 3 and 4…; (vii) Universal Declaration of Human Rights (UDHR): Preamble and Articles 1, 2 and 7…; and (viii) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). (tt) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) amounted to "impermissible discrimination", failing to treat like persons in a like manner, and also failing to give a proper account to genuine differences in the circumstances of the US Government's extradition request, in comparison to every other previous extradition request from the United States of America since the Extradition Act 1988 (Cth) came into force. Particularly the Indigenous heritage of the Applicant, which violated the Applicant's constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment protected under the Constitution; (uu) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) gave the stamp of approval to 'unconscionable government conduct' and 'executive lawlessness', thereby contravening section 64 of the Constitution relating to "responsible government" and ministerial accountability; (vv) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) failed to consider "...the United States Government has a Constitutional duty to make a diligent and good faith effort to locate defendants and bring them to trial" which the US Government had failed to observe in the handling of the Applicant's substantive US criminal proceedings. Furthermore, the Acting Attorney-General failed to consider the Attorney-General's Department's non-disclosure and withholding of documents relating to the 16 years of mutual assistance and international joint investigation which confirmed the US Department of Justice had knowledge of both the Applicant and his father's whereabouts and had tangible leads to their locations at any time via the Australian Federal Police. This non-disclosure and withholding of documents, which documents the Applicant had legitimately sought access to prior to the Surrender Decision, contravened implications derived from international law and the Constitution; The Applicant contends in support of paragraph 10: Particulars (a) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations create a "conflict of interest" and fail to sufficiently protect the fundamental human rights and constitutional implied rights of Australian citizens by empowering the Executive Government to determine the surrender outcome and assess the fundamental human rights of persons subject to extradition while at the same time assisting the governments of foreign states requesting extradition in their legal proceedings, such as Mr David Reed and Mr Stephen Bouwhuis have done in the case of the US Government. In their current form and practice the Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations are profoundly unjust and inconsistent with international law, and are inconsistent and beyond the power provided under s 61 of the Constitution; (b) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations subject the resident of one State to a disability or discrimination in another State which would not be equally applicable to him or her if he or she were a resident in such other state by reason of the application of different rules of evidence in contravention of section 117 of the Constitution. Further, the varying application of Human Rights Law in different States and Territories, as the State of Victoria and the ACT have incorporated legislation to incorporate fundamental human rights enshrined in the International Covenant on Civil and Political Rights (ICCPR) while the other States and Territories have not, resulting in a contravention of section 117 of the Constitution; (c) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations infringe the Magna Carta, common law rights and accepted principles of international customary law, so fundamental they cannot be overturned by legislation: (i) Magna Carta Paragraph 29: "No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice"; (ii) common law rights such as procedural fairness, natural justice, liberty, speedy trial, duty of fairness, due process, protection from excess of power and the common law principle which requires relevant considerations to be taken into account and the decision not to be Wednesbury unreasonable; (iii) the common law sufficed on its own to indicate that a "legitimate expectation" was generated by the UDHR, ICCPR, ICERD and CAT as accepted part of international customary law. The UDHR, ICCPR, ICERD and CAT are all now internationally accepted and entrenched as part of international customary law; and (iv) the principle of international customary law that treaties will be interpreted in good faith and that Governments will uphold both the "Rule of Law" and respect fundamental human rights of all people including its own citizens. (d) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are beyond power and not for the peace, order and good government of the Commonwealth with respect to external affairs within the meaning of section 51 xxix of the Constitution by reason of the Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations being inconsistent with: (i) the Australian Human Rights Commission Act 1986 (Cth), Schedule II - International Covenant on Civil and Political Rights (ICCPR) Articles 2, 5, 7, 9, 10, 14 and 26; (ii) the Human Rights Act 2004 (ACT), sections 8(1), 8(2) and 8(3), 10(1) and 10(2) and 22(1) and 22(2)(a) and 22(2)(b) of the Act; (iii) the Racial Discrimination Act 1975 (Cth), sections 9 and 10 of the Act; and Schedule I - International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Articles 1, 2, 5, 6 and 7; (iv) the United Nations Declaration of the Rights of Indigenous People, Articles 2, 7, 15, 17, 19, 25, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 4; and (v) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). … (e) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent with the requirements of Chapter III of the Constitution by reason of the Act and Regulations conferring non-judicial powers on the courts thereby forcing Chapter III courts to perform administrative quasi-judicial functions without due consideration of the inherent characteristics of a Chapter III court as intended by those whom framed the Constitution. Further, the Chapter III courts must in reality and by appearance be independent or separate from the executive and the Parliament. The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent the Constitution because an "abuse of process" has been deemed as an unavailable option under the Extradition Act 1988 (Cth) legislation which is against the traditional conceptions of any Chapter III court. (f) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations derogate from universally accepted fundamental human rights and fail to provide for the United Nations ICCPR Article 14 minimum guarantees in criminal proceedings, fail to ensure a fair extradition process and fail to respect the "Rule of Law" which is an over reach of the power conferred on Parliament. In particular, there is no requirement for legal representation at any stage of the extradition proceedings under the Extradition Act 1988 (Cth) despite the serious nature and consequences of extradition. Moreover, the Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations require arbitrary punishment and arbitrary abrogation of fundamental human rights without the fair and impartial application of the relevant law to facts which have been properly ascertained and is also inconsistent with the Governments representations, long established practice and published policy regarding: (i) Indigenous human rights protection; (ii) Anti-discrimination and equality; (iii) Constitutional implied rights; (iv) Government accountability; (v) Freedom of Information and transparent Government; and (vi) Extradition and mutual assistance in criminal matters; (g) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent with the constitutional implied rights under the Constitution, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment; (h) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are also inconsistent with international customary law including the international peremptory norms of international extradition law and extradition treaties: (i) United Nations Model Treaty on Extradition 1990, Article 3 and 4; and (ii) Vienna Convention on the Law of Treaties 1969, Article 19, 26, 31, 53, 62 and 64; (i) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations derogate traditional common law rights and enshrined constitutional principles derived from the UK "Bill of Rights" by providing for arbitrary arrest and arbitrary abrogation of fundamental human rights without a fair hearing. This arbitrary arrest and arbitrary abrogation of fundamental human rights is potentially indefinite with no reasonable or genuine opportunity of a person subject to extradition proceedings being granted bail or being able to challenge the legality of their detention, contrary universally accepted standards established by international customary law and the traditional common law right of liberty; (j) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations fail to sufficiently protect the rights of Australian citizens, particularly the fundamental human rights of indigenous Australians, which is inconsistent with recognising the human dignity of a person subject to extradition as a full member of the human community, and in its current form and practice is profoundly unjust and inconsistent with international law. In 2015 the United Nations Human Rights Committee (UNHRC) in communication 1973/2010 gave a strong recommendation to the Commonwealth of Australia to change the current form and practice of the Extradition Act 1988 (Cth), so that all Australians can fully enjoy ICCPR human rights. The UNHRC also found the Commonwealth in breach of ICCPR Articles 9(1) and 9(4) because of the arbitrary detention of Mr Hew Griffiths while he contested his extradition to the US. In a clear snub to the United Nations Human Rights Committee the Commonwealth has taken no steps to change the Extradition Act 1988 (Cth). (k) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are invalid as the exercise of legislative power is not proportional to, nor is it appropriately adapted to section 51 xxix external affairs head of power in the Constitution. The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations fail the "Proportionality Test" as they both infringe constitutional implied rights of those persons subject to extradition proceedings, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment, and further deny fundamental human rights of those persons subject to extradition proceedings, and are not reasonably or appropriately adapted to achieve the ends that lie within the limits of constitutional power, and are inconsistent with recognising the "human dignity" of a person as a full member of the human community, particularly for First Nations people whose recognition, constitutional implied rights and fundamental human rights have all long been denied and ignored under the Constitution. (l) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are invalid as they infringe upon the implied "religious freedoms" and the "cultural practices" of First Nations people provided under section 116 of the Constitution, by failing to recognise the importance of First Nations peoples "special connection" with Australia and the spiritual significance of "Dreaming" and being connected with the land. The effects of permanently separating an Indigenous Australian citizen from their family, culture and country are plainly oppressive and unjust not only for the individual but also for the extended family and community of the individual subject to extradition. Australia is the "Spiritual Place" of First Nations people, and the Applicant therefore has a constitutional implied right, a fundamental human right and an un-extinguished common law right to stay, live and die in Australia as has happened for over 60,000 years. Not only does the land belong to First Nations people, but they belong to it - now and forever. They have belonged to it in the past, the now, and in the future when they will die and return in spirit and in substance to their "Dreaming-place". Any legislation that purports to sever this constitutional implied right, fundamental human right and an un-extinguished common law right, of First Nations people to live and die in Australia, is beyond power and invalid under any modern interpretation of the Constitution. 86 It may be noted that the particulars, or grounds, are set out in two tranches. First, the particulars described as (a)-(vv) are provided in support of paragraphs 1 to 9 of the relief sought. Second, particulars (a)-(l) are in support of paragraph 10 of the relief sought. 87 I will first consider each of the particulars in support of paragraphs 1 to 9 of the relief sought. I will then separately consider each of the particulars in support of paragraph 10 of the relief sought. 88 I proceed on the basis that the particulars are intended to either particularise or replace the grounds set out at A-D of the Draft Amended Originating Application. 89 A number of the particulars make similar or overlapping allegations, so I will attempt to group them together. I will describe the "particulars" as "grounds", since they are in effect separate grounds.

Non-compliance with s 22 of the Extradition Act 90 Mr Matson alleges in Ground (a) that, contrary to s 22(2) of the Extradition Act, the decision that Mr Matson be surrendered to the USA: (i) was not made as soon as was reasonably practicable, having regard to the circumstances, after the Applicant became an eligible person; and (ii) was not made, or not made exclusively, in relation to a qualifying extradition offence or qualifying extradition offences. 91 The first of these allegations relies upon the requirement in s 22(2) that the Attorney-General "shall" determine whether a person is to be surrendered, "as soon as is reasonably practicable, having regard to the circumstances". 92 This ground relies upon the written submissions prepared by Mr Morris QC. The submissions assert that the Surrender Decision was not made as soon as reasonably practicable, having regard to the elapse of 9 ½ months between the judgment of the Full Court and the Surrender Decision, during which time Mr Matson was incarcerated on remand. The submissions assert that the Surrender Decision contravened s 22(2) of the Extradition Act and that the delay was a mandatory relevant consideration which the Attorney-General failed to take into account. Further, it is alleged that the decision was "fraud on the statutory power", in the sense that, "the power has been exercised for a purpose, or with an intention, beyond the scope of or not justified by the instrument creating the power": see SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51 at [29]. 93 The Attorney-General submits that it has not been demonstrated how mere delay could result in a "fraud on the statutory power". The Attorney-General also emphasises that Full Court authorities establish that delay in making the decision is not a matter which gives rise to jurisdictional error under s 22(2). 94 The judgments in Snedden v Minister for Justice (2014) 230 FCR 82 at [107], Hala v Minister for Justice (2015) 145 ALD 552; [2015] FCAFC 13 at [35]-[37] and Lobban v Minister for Justice (2016) 244 FCR 76 at [38] establish that a mere failure by the Attorney-General to make a decision under s 22(2) of the Extradition Act as soon as reasonably practicable does not amount to jurisdictional error. The submission that the Surrender Decision contravened s 22(2) of the Extradition Act because the decision was not made as soon as reasonably practicable must be rejected. 95 Any failure by the Attorney-General to make the decision as soon as reasonably practicable does not, of itself, demonstrate that the power was exercised for a purpose, or with an intention, beyond the scope of, or not justified by, s 22 of the Extradition Act. Section 3 states that the principal objects of the Extradition Act include enabling Australia to carry out its obligations under extradition treaties. The Surrender Decision was made in response to a request made by the USA under the USA Extradition Treaty. The delay does not demonstrate that the Surrender Decision was made for any other purpose, or with any other intention. 96 The ground of failure to take into account a relevant consideration was considered by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-41. His Honour's conclusions may be summarised as follows: (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned. 97 Delay in making the decision whether to surrender a person is capable of being taken into account under the discretion in s 22(3)(f) of the Extradition Act. However, the discretion was described in Rivera v Minister for Justice and Customs (2007) 160 FCR 115 by Emmett J (with whom Conti J agreed) in the following terms at [14]: Thus, the 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. 98 Therefore, there was no express or implied obligation upon the Attorney-General to take into account delay in making the Surrender Decision. That the decision has not been made as soon as reasonably practicable is not a mandatory relevant consideration. Ground (a)(i) has not been established. 99 Ground (a)(ii) was not addressed in submissions. In the absence of further particularisation, I find that this ground has not been established.

Failure to accord natural justice 100 Grounds (b), (c), (d) and (e) of the Draft Amended Originating Application allege that the Attorney-General overlooked substantial clearly articulated arguments which relied upon established facts. 101 These grounds are founded upon a letter written by Mr Morris QC to the Department dated 7 June 2018: Last year, I appeared for Mr Baron Matron [sic] in proceedings in the Full Federal Court, pursuant to a "Court referral for legal assistance" under Division 4.2 of the Federal Court Rules. Although that engagement has now ended, Mr Matson - who is otherwise unrepresented - has asked me to respond to your letter of 22 May 2018. I trust that your office has all of the material and submissions from the proceedings in the Full Federal Court, along with the Court's Reasons for Judgment, and will have appropriate regard to that material in considering the position of Mr Matson. In particular, I have every expectation that your office give close scrutiny to those aspects identified by the Full Federal Court as appropriate matters for consideration by the Attorney−General at (what is now) the current stage of proceedings. Beyond drawing these matters to your attention - which I feel sure is unnecessary - I cannot see that there is anything further which I can usefully say on behalf of Mr Matson at this point in time. I might add, however, that throughout my dealings with Mr Matson I have found him at all times to be an honest and conscientious young man (which appears to be in stark contrast with the case alleged against him in the United States), and by no means unintelligent if somewhat naive. From my observation, there appears to be considerable weight in the proposition that he was the innocent "stooge" in a fraud conceived and perpetrated by his father; a conclusion which is reflected in the dearth of evidence showing mens rea in the otherwise comprehensive brief of evidence supplied by US authorities. One might ask, rhetorically, which of us would pause to question whether one's father is a fraudster, when he offers an opportunity to participate in an apparently genuine business enterprise? Confident in the knowledge that all extradition matters receive the most careful and sedulous consideration by the First Law Officer of the Crown, I feel able to commend Mr Matson to the Attorney−General for the most favourable consideration which may be found to be consistent with the Attorney's onerous responsibilities in such cases. If I can be of any assistance to your office or the Attorney−General in dealing with this matter, I shall be very pleased to continue and (if necessary) extend my limited pro bono involvement on Mr Matson's behalf. 102 It may be noted that Mr Morris QC's letter, the entirety of which is extracted above, was the only representation that Mr Matson made in response to the invitations by letters dated 16 April and 22 May 2018 from the Department to make representations. 103 Mr Matson submits that if the arguments that were overlooked by the Attorney-General had been accepted, they, "would or could have [been] dispositive of the surrender decision, which resulted in a practical injustice". 104 Mr Matson relies upon Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26, where Gummow and Callinan JJ stated at [24] that, "To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord…natural justice". 105 The Attorney-General, relying upon migration cases, submits that it must be shown that the argument was raised squarely or clearly on the material available to the decision-maker: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]-[60]; SZTOR v Minister for Immigration and Border Protection [2019] FCA 349 at [37]. The Attorney-General's function under s 22(2) of the Extradition Act does not appear, in this respect, to be distinguishable. 106 For Mr Matson to establish jurisdictional error on the basis of a failure to take into account the arguments set out in Grounds (b), (c), (d) and (e), it must be established that the arguments: (1) were articulated in, or arose clearly from, the material before the Attorney-General; (2) were not considered by the Attorney-General when making the Surrender Decision; (3) were material, in the sense that they might realistically have resulted in a different decision. 107 It must first be considered what material was requested by Mr Matson to be placed before the Attorney-General for consideration. Mr Matson alleges that the Attorney-General had been asked to consider, "all material and submissions Mr Matson had filed for the purpose of his judicial review applications". The Attorney-General submits that, "A request in such wide terms was never made". The Attorney-General submits that Mr Morris QC's letter only requested that the Department "have appropriate regard to" material consisting of, "all of the material and submissions from the proceedings in the Full Federal Court, along with the Court's Reasons for Judgment". 108 The Departmental Submission provided the Attorney-General with an affidavit sworn by Mr Matson on 24 June 2016 (which contained his written submissions at first instance in his application for review under s 21 of the Extradition Act); his written submissions on appeal; and the reasons for judgment at first instance and on appeal. In addition, the Department placed before the Attorney-General its advice upon the preconditions to surrender and the grounds for refusal of surrender, which addressed a number of the submissions that had been made by Mr Matson in the judicial review applications. 109 Ground (b) sets out three separate allegations. The first is that the Attorney-General failed to consider Mr Matson's argument that any surrender order would be unjust, oppressive or too severe a punishment by reason of delay. I accept that this argument was advanced by Mr Matson. It was raised squarely in Mr Matson's affidavit of 24 June 2016. 110 The Departmental Advice to the Attorney-General addressed Mr Matson's contentions concerning the USA's delay and its consequences. In particular, the Department addressed Mr Matson's submissions that the delay would cause him prejudice in the conduct of a trial and prejudice or hardship on the basis that he will now be exposed to a more onerous legislative regime as a result of the delay. Therefore, I do not accept that the Attorney-General failed to take into account the first allegation in Ground (b). 111 The second allegation in Ground (b) is that the Attorney-General failed to consider Mr Matson's argument that any punishment in the USA would likely be unjust and oppressive and too severe a punishment by virtue of the maximum penalties and sentencing regime in the USA. 112 The Attorney-General disputes that this argument was raised squarely by Mr Matson. Mr Matson repeatedly mentioned in his affidavit sworn on 24 June 2016 that there was a "real chance of…prejudice in punishment" if he were surrendered to the USA. I find that this argument was clearly articulated by Mr Matson. 113 However, the Departmental Advice specifically addressed the punishment that could potentially be imposed in respect of the extradition offences. In particular, it was noted that, "The qualifying extradition offences in relation to Mr Matson carry a maximum sentence of between five years and 20 years' imprisonment". The Departmental Advice also addressed human rights considerations, concluding that, "The department is satisfied that a number of protections and guarantees, similar to those applying in Australia, would be observed if Mr Matson were to be surrendered to and tried in the US". The Attorney-General therefore took into account the punishment that could be imposed upon Mr Matson in the USA. I do not accept that there was a failure to consider the second allegation in Ground (b). 114 The third allegation in Ground (b) is that the Attorney-General failed to consider Mr Matson's argument that his Indigenous heritage would have an effect on him being incarcerated in the USA for any lengthy period. The Attorney-General disputes that this argument was raised squarely by Mr Matson. 115 I accept that Mr Matson advanced an argument that his Indigenous heritage would have an effect on his incarceration in the USA. In Matson v United States of America at [35], I noted that it had been submitted on behalf of Mr Matson that any surrender order would be unjust and oppressive, "because he is of Indigenous heritage and that would have an effect on him being incarcerated for any lengthy period over there". 116 Mr Matson made separate submissions in his affidavit dated 23 September 2019 that the "special connection" that Indigenous people have to Australia, as enunciated in the Uluru Statement from the Heart, was a significant part of his third argument in Ground (b), which the Attorney-General failed to consider. However, this "special connection" was not raised in any of the material before the Attorney-General, nor in the material filed in any of the other proceedings before the Court, and so I do not accept that it was raised squarely by Mr Matson. 117 The effect of Mr Matson's Indigenous heritage on his incarceration in the USA was addressed in the Departmental Advice to the Attorney-General, including as follows: 35. The department does not consider that there is a direct casual connection between any of the other factors identified by Mr Matson and the prejudice suffered at trial or punishment by way of race or nationality. In particular, the department notes the following: a. it is not apparent to the department that there is an established history in the US of persons being prejudiced at trial or punishment, detention or restriction in personal liberty by reason of their Australian nationality or indigenous heritage. 118 Therefore, I do not accept that there was a failure to take into account the third allegation described in Ground (b). 119 The allegation in Ground (c) is that the Attorney-General overlooked the argument "that 'a sense of false security engendered in the defendant is also a relevant consideration' in determining whether extradition was unjust or oppressive". 120 The Attorney-General disputes that this argument was raised squarely by Mr Matson. I accept that the argument was clearly advanced by Mr Matson, as he had stated in his affidavit dated 24 June 2016 that: A sense of false security engendered in the defendant is also a relevant consideration. If the actions of the government have led him to believe that he will not be extradited then it may be oppressive if the government then proceeds to try to do so. Kakis v Government of Cyprus [1978] l WLR 779, 790 per Lord Scarman. 121 While the phrase "false sense of security" was not used in the Departmental Advice, the content of this argument was addressed in the context of delay. Both Mr Matson's affidavit and the issue of the consequences of delay were put before the Attorney-General. Further the Departmental Advice specifically addressed Kakis v Government of the Republic of Cyprus [1978] l WLR 779, the authority cited by Mr Matson, as follows: 94. …In New Zealand v Moloney, the Full Court of the Federal Court considered the concepts of injustice and oppression by virtue of purported delay by the requesting country. In particular, the Full Court noted that it would be unjust to require a person to be surrendered if, by reasons of the time that has elapsed since the commission of the alleged offence, a fair trial cannot be had. Similarly, in Kakis v Government of the Republic of Cyprus, Lord Diplock noted "... what matters is not so much the cause of the delay as its effect." 95. While there is no requirement for the purported delay to amount to injustice or oppression suffered by Mr Matson, the commentary in New Zealand v Moloney and Kakis v Government of the Republic of Cyprus as extracted at paragraph 95 [sic] above provides helpful guidance on the relevant factors to take into account when considering an allegation of purported delay. 122 Therefore, the Attorney-General considered the effects and consequences of the delay, which included the false sense of security described by Mr Matson. I do not accept that the Attorney-General overlooked the argument described in Ground (c). 123 Ground (d) alleges that the Attorney-General overlooked the argument that there was the potential for torture or cruel and unusual punishment in violation of Mr Matson's fundamental human rights protected under Art 7 of the International Covenant on Civil and Political Rights (the ICCPR). 124 The Attorney-General disputes that this argument was raised squarely by Mr Matson. I accept that this argument was clearly advanced by Mr Matson, as his affidavit dated 24 June 2016 raises a number of arguments relating to the potential for torture or cruel and unusual punishment. 125 However, the Departmental Advice specifically addressed human rights considerations, Australia's obligations under the ICCPR and the issue of torture, stating: 47. The department is not aware of any information suggesting Mr Matson will be in danger of being subjected to torture within the meaning of paragraph 22(3)(b) in the event that he is surrendered to the US. Further, the department notes that the US is a party to the following multilateral instruments containing a prohibition on torture: … • International Covenant on Civil and Political Rights. 48. Accordingly, in light of the above, the department considers that you may be satisfied that there are no substantial grounds for believing that, if surrendered to the US, Mr Matson would be in danger of being subjected to torture within the meaning of paragraph 22(3)(b) of the Extradition Act. … 138. The department is satisfied that a number of protections and guarantees, similar to those applying in Australia, would be observed if Mr Matson were to be surrendered to and tried in the US. 126 Mr Matson alleges in his affidavit dated 23 September 2019 that, "The legal advice on human rights was clearly inadequate and did not make any specific reference to my argument of "torture, cruel and unusual punishment" under Article 7 of the ICCPR". While the Departmental Advice does not specifically reference Art 7, it clearly addressed allegations of torture, as well as the protections and guarantees available in the USA. Therefore, I do not accept that there was a failure to take into account the matters stated in Ground (d). 127 Ground (e) asserts that the Attorney-General overlooked the argument that Mr Matson's implied rights under the Constitution were being violated, including the right to protection from cruel and unusual punishment, particularly in consideration of the maximum possible penalty amounting to 305 years imprisonment, and the real likelihood of Mr Matson receiving a disproportionately excessive sentence if convicted in the USA. 128 The Attorney-Generally disputes that this argument was raised squarely by Mr Matson. I accept that part of this argument was raised by Mr Matson in his affidavit dated 24 June 2016. In particular, it was argued that: Effectively the current US-Australian extradition regime contains no protection against many accepted fundamental Human Rights…significantly no protection is provided for in the US-Australia Treaty against "cruel, unjust or oppressive treatment, or to severe a punishment" as is provided for in the Australian Model Treaty on Extradition, the UN Model Treaty on Extradition and the Australian Extradition (Commonwealth Countries) Regulations Article 7. Clearly prejudicing Australian Citizens facing extradition to the United States of America. … The omission of this fundamental Human Right in the US-Australia Treaty creates implicit bias to Australians and amounts in itself to the strong possibility of prejudice in punishment in the United States of America if surrendered. The implied Constitutional right to protection against cruel, unjust or to severe a punishment was raised by Murphy J of the High Court in Sillery v R [1981] HCA 34. This point raises a Constitutional question under s 75 v of the Constitution. 129 The Departmental Advice dealt with these arguments as follows: 138. The department is satisfied that a number of protections and guarantees, similar to those applying in Australia, would be observed if Mr Matson were to be surrendered to and tried in the US. The US has a robust institutional framework for the protection of human rights and the department notes that Mr Matson will be afforded rights under the US Constitution in the event you should determine that he is to be surrendered to the US. Relevantly, the sixth amendment of the US Constitution affords an accused the right to a speedy and public trial, by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with witnesses against him, to have compulsory process for obtaining witnesses in their favour and to have the assistance of counsel. The department also notes the US' comments outlined above at paragraph 83 regarding Mr Matson's right to a speedy trial. 139. The fourteenth amendment under the US Constitution mandates that no State shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 140. The US is also a party to the ICCPR. In the US the ICCPR applies to all government entities and agents, including all state and local governments. Countries that have ratified the ICCPR are obligated to protect and preserve basic human rights including freedom from torture and ill-treatment. The ICCPR compels state parties to take administrative, judicial and legislative measures to protect the rights enshrined in the ICCPR and to provide effective remedies. 130 Therefore, I do not accept that there was a failure to take into account Mr Matson's allegations concerning his right to protection from cruel and unusual punishment. As discussed above, the Attorney-General also took into account the maximum penalties that may be imposed, and other human rights considerations. 131 I have found that the Attorney-General did not overlook or fail to address any of the arguments as alleged by Mr Matson. Therefore, there was no failure to accord natural justice to Mr Matson in that respect. Grounds (b), (c), (d) and (e) cannot be upheld.

Denial of Procedural Fairness 132 Grounds (f), (g), (h), (i) and (j) allege that the Surrender Decision was tainted by a denial of the procedural fairness hearing rule. 133 Mr Matson's written submissions assert that he was subject to practical injustice in the sense identified in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1. He also submits that he was not provided with adverse material that was credible, relevant and significant to the Surrender Decision, relying on Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88. 134 I will deal firstly with the allegations relying on the decision of the High Court in Lam. That case was concerned with denial of procedural fairness where a decision-maker creates an expectation that a procedural step will be taken and fails to take that step, resulting in detriment to a person affected by the decision. The principle was described by Gleeson CJ at [37]: A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations…A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 135 In that case, Gleeson CJ held at [38] that there was no practical injustice because the applicant had not relied upon the conduct of the Minister to his detriment and had not lost the opportunity to advance his case. As Callinan J explained at [149]: In my opinion, what is fatal to the applicant's claim here is that he was unable to demonstrate that there was any material that he could have put before the respondent which was either not already in the respondent's hands, or which might have influenced the respondent to decide his case differently. That he might have liked to have had a further opportunity to repeat what he had already said, or to advance the same argument differently or more emphatically is not to the point and cannot avail him. 136 Grounds (f) and (g) assert that there was a denial of procedural fairness on the basis that documents containing adverse material that was credible, relevant and significant to the Surrender Decision which Mr Matson had sought under FOI processes were not provided to him prior to the Surrender Decision. 137 Mr Matson's submissions seem to assert that he had an expectation that the documents described in Grounds (f) and (g) would be provided to him prior to the Surrender Decision, and that he would have an opportunity to make representations to the Attorney-General in respect of the contents of those documents. The failure of the Department to comply with his expectation is alleged to have resulted in practical injustice. 138 I have already referred to Mr Matson being provided with the 2018 FOI Documents prior to the Surrender Decision. Mr Matson was provided with documents I have described as the "4 July FOI Documents", after the Surrender Decision had been made. Those documents included over 70 additional documents which he alleges had not been disclosed to him with the 2018 FOI Documents. The 4 July FOI Documents were provided to Mr Matson again on 6 November 2019, now with a footer that included the FOI decision reference and pagination. I have described these further documents as the "6 November FOI Documents". The approximately 70 additional documents disclosed to Mr Matson on 4 July 2019, and again on 6 November 2019, are apparently the subject of Grounds (f) and (g), as is indicated in submissions filed by Mr Matson dated 19 December 2019. 139 Mr Matson was notified by letter dated 16 April 2018 that the Department intended to proceed to the final stage of the extradition process, which required the Attorney-General to determine whether Mr Matson should be surrendered. The letter said that Mr Matson was entitled to make representations, and that, "Any representations made by you will be brought to the Attorney-General's attention". A further letter from the Department dated 22 May 2018 noted that no representations had been received, but said that if Mr Matson still wished to make representations, they should be provided. 140 The only representation in respect of the proposed decision under s 22(2) of the Extradition Act provided by or on behalf of Mr Matson was Mr Morris QC's letter of 7 June 2018. Importantly, Mr Matson did not request that the Department refrain from asking the Attorney-General to make the Surrender Decision until his FOI Requests had been completed. The Department made no representation, contrary to Mr Matson's submissions, that it would refrain from asking the Attorney-General to make the Surrender Decision until the FOI Requests had been completed. 141 Mr Matson has not demonstrated that the Department engaged in conduct that led him to have an expectation that the Attorney-General would refrain from making his decision until the FOI process had been completed to Mr Matson's satisfaction. Therefore, to the extent that they rely upon Lam, Grounds (f) and (g) cannot succeed. 142 Ground (j) alleges that the Department did not put the representations prepared by Mr Morris QC before the Attorney-General. Mr Matson alleges that he was misled into thinking that "all material and submissions" would be placed before the Attorney-General, whereas they were not, and he lost an opportunity to provide material and make submissions as a result of that misrepresentation. 143 The Department stated in its letter of 16 April 2018, that it would bring any representations made by Mr Matson to the Attorney-General's attention. That letter must, in my opinion, be understood as representing that any relevant representations would be brought to the Attorney-General's attention. It cannot be understood as promising that such parts of the representations as might be immaterial would be brought to the Attorney-General's attention. 144 Mr Morris QC's letter noted that the Department had "all of the material and submissions from the proceedings in the Full Federal Court", and asked that "appropriate regard" be given to that material. By asking that "appropriate regard" be had to the material, the letter itself recognised a distinction between material from the proceedings before the Full Court that would be useful for the Attorney-General's decision and material that would not be useful. Mr Morris QC's letter must be understood as asking that regard be had to the material before the Full Court in so far as it was relevant to the Attorney-General's decision. It did not request that every document filed in the proceedings before the Full Court be placed before the Attorney-General. 145 Mr Morris' letter was not itself placed before the Attorney-General, but its contents were described in the Departmental Advice as follows: 9. On 7 June 2018, in response to the department's invitation to provide representations as to why he should not be surrendered to the US, Mr Matson requested that you have regard to all the material and submissions he filed for the purpose of his review applications (Attachments D and E) in addition to the courts' judgments (Attachment G and H). 146 The submissions accurately summarised the salient part of Mr Morris QC's letter. Mr Morris had continued by saying that he, "cannot see that there is anything further which I can usefully say on behalf of Mr Matson at this point in time" (emphasis added). Mr Morris QC nevertheless went on to say that he had found Mr Matson to be "an honest and conscientious young man… and by no means unintelligent if somewhat naïve", and to express his opinion that there appeared to be considerable weight in the proposition that Mr Matson was an innocent "stooge" in a fraud conceived and perpetrated by his father. Although these comments were not placed before the Attorney-General, Mr Morris QC had himself recognised that they were not useful for the decision. Accordingly, the relevant parts of Mr Morris QC's representations were placed before the Attorney-General. 147 I find that the representation contained in the letters of 16 April and 22 May 2018 that any relevant representations would be brought to the attention of the Attorney-General was complied with. If I am wrong, and, instead, the letters represented that all parts of the representations made would be brought to the attention of the Attorney-General, the representation was departed from by not providing the whole of the letter of Mr Morris QC to the Attorney-General. However, Mr Morris QC himself expressly recognised parts of the letter as not being useful - consisting of his personal opinions about Mr Matson's honesty and intelligence and Mr Matson's role in the fraud perpetrated by his father. If those parts of the letter had been drawn to the Attorney-General's attention, they could not conceivably have influenced the Attorney-General to make a different decision. As Callinan J indicated in Lam at [149], that is fatal. 148 Further, Mr Matson's evidence does not disclose that he in fact relied upon any representation made by the Department. Ground (j) must also fail for this reason. 149 Ground (i) alleges that the Department failed to annex or adequately summarise in the brief to the Attorney-General, "all submissions and material" which Mr Matson had filed for the purposes of his proceeding before the Full Court. The omitted documents are said to include all applications and amended applications, notices of appeal, submissions and affidavits filed in QUD 89 of 2016, QUD 569 of 2016, QUD 844 of 2016 and QUD 51 of 2017, and the Appeal Books filed in QUD 844 of 2016 and QUD 51 of 2017. 150 The material placed before the Attorney-General included Mr Matson's affidavit sworn on 24 June 2016 in QUD 89 of 2016, the First Instance Proceeding. That affidavit consisted of a combination of Mr Matson's evidence and his submissions. The Department also placed before the Attorney-General, written submissions prepared by Mr Morris QC for the originating application (QUD 569 of 2016) and the appeal (QUD 844 of 2016) before the Full Court. There was an application for leave to appeal from my refusal of bail (QUD 51 of 2017) which was not ultimately pursued before the Full Court. There were no documents concerning that application placed before the Attorney-General. 151 The representation made in the Department's letters of 16 April and 22 May 2018 was that the Department would bring any relevant representations to the attention of the Attorney-General. I have found that Mr Morris QC's letter must be understood as asking that regard be had to the material before the Full Court only in so far as it was relevant to the Attorney-General's decision, and did not request that every document in the proceedings before the Full Court be placed before the Attorney-General. The judgments at first instance and in the Full Court, as well as Mr Matson's submissions, were placed before the Attorney-General. 152 I reject the premise of Ground (i) that Mr Morris had requested that all documents filed in the proceedings before the Full Court be placed before, or summarised for, the Attorney-General. 153 Further, Mr Matson has not demonstrated how material that was omitted could have influenced the Attorney-General to make a different decision. Therefore, Ground (i) cannot succeed insofar as it relies upon Lam. 154 I will turn now to VEAL, a case concerned with a letter that was in the possession of the decision-maker, but not disclosed to the applicant, which was considered and then given no weight. The relevant principle from VEAL at [17] is that procedural fairness requires that adverse information before the decision-maker that is "credible, relevant and significant" must be disclosed before making the decision, so that the person impacted by the decision has an opportunity to deal with such information and respond to it: see also, Kioa v West (1985) 159 CLR 550 at 628-629. 155 Mr Matson submits that the principle in VEAL applies such that the Attorney-General was obliged to disclose the material identified in Grounds (f) and (g). As I have said, that material is alleged to consist of documents held by the Department, but which were not disclosed to Mr Matson prior to the Surrender Decision. The documents were disclosed to Mr Matson on 4 July 2019 after revised decisions were made by the Department following Mr Matson's applications for review to the OAIC, and were disclosed again on 6 November 2019 with a footer that included the FOI decision reference and pagination. I have previously indicated that I will adopt Mr Matson's description of the over 70 additional documents not previously disclosed prior to the making of the Surrender Decision as the "Withheld Documents". 156 The Attorney-General submits that the principle in VEAL only applies to material that was before the relevant decision maker, as a decision-maker, "cannot disclose a document if they do not have it". It is submitted that there is no denial of procedural fairness arising from the mere presence of undisclosed material on the Department's file where there is no evidence that the material was before the Attorney-General. 157 The material placed before the Attorney-General when he made his decision consisted of the front page, a Surrender Warrant for signing, the Departmental Advice and a number of specified Attachments. The Attachments consisted of Mr Matson's affidavit dated 24 June 2016 and written submissions, the USA's response to Mr Matson's submissions and the reasons for judgment of the Court at first instance and on appeal in respect of his judicial review applications. 158 In Bromby v Offenders' Review Board (1990) 22 ALD 249 at 267, the majority held: In every case it is theoretically possible that a decision-maker has referred to or relied upon information which was not disclosed to the party affected. In our opinion courts are not entitled to act on such theoretical possibilities and speculations in proceedings for judicial review. (See also Medical Board of Queensland v Freeman [2010] QCA 093 at [25]). 159 There is no evidence that any of the Withheld Documents were before the Attorney-General when he made his decision. Nor did Mr Matson make any submission to that effect. 160 Mr Matson's complaint is, in truth, not of the non-disclosure of material that was before the Attorney-General, but of non-disclosure of material that was not placed before the Attorney-General. The principle in VEAL does not apply to material not placed before the decision-maker and, therefore, not considered by the decision-maker. Grounds (f) and (g) cannot succeed insofar as they rely upon VEAL. 161 In his written submissions of 19 December 2019, Mr Matson also expresses his argument under Grounds (f) and (g) in a different way. He submits that the Attorney-General was bound to "properly consider the Withheld Documents", and that his failure to do so amounted to a denial of procedural fairness. The argument seems to be a hybrid of the grounds of failure to take into account a relevant consideration and denial of procedural fairness. 162 Mr Matson argues that the Attorney-General was required to consider information that was in his actual possession, or in his constructive possession, if: (i) the information was credible; (ii) it was significant to a matter he was bound to have regard to; (iii) an adequate reason for non-disclosure had been disclosed; and (iv) the Attorney-General did not decide that, even if the information was true, the information would not affect his decision. Mr Matson's argument draws from the judgment of Brennan J in Peko-Wallsend at 60-61. 163 Mr Matson submits that the Withheld Documents related to him and to his father, Roger Matson, and were on the Department's files and in the "constructive possession" of the Attorney-General. He submits that the documents are credible and significant to the Surrender Decision; that adequate reasons for non-disclosure of redacted material in the Withheld Documents have been given; and the Attorney-General could not have decided that the Withheld Documents could not affect his decision. 164 Mr Matson submits that, in these circumstances, he should have been notified of at least the "gist" or "substance" of the Withheld Documents and given an opportunity to comment upon them. He submits that if he had been aware of the existence of the Withheld Documents, he "would have done something different that would have improved his chances of having the Respondent exercise his discretion favourable to refuse surrender". Mr Matson submits that fairness and justice require that if there is something important to the person the subject of an administrative decision in the possession of the Department or the decision-maker, it must be revealed to the person. 165 Mr Matson submits that if the Withheld Documents had been disclosed, that would have been determinative of, or at least might have affected, the Surrender Decision. He argues that there are three errors revealed in respect of the Withheld Documents. First, he says that the Attorney-General was misled about the existence of the documents, in that he was not informed of their existence. Second, he says the Department misled the Attorney-General as to the existence of the Withheld Documents which contained material favourable, adverse and potentially prejudicial to his case. Third, he says the Department denied him the opportunity to seek legal advice upon, rely upon and make submissions about such of the Withheld Documents as were favourable to his case. 166 Mr Matson submits that the Withheld Documents contained relevant facts actually known to the Department which contradicted facts set out in the Departmental Advice to the Attorney-General. He notes that the Departmental Advice stated that: The US also noted that Mr Matson held a passport in his own name and two other passports in the name of Philip Fletcher. Further, the US advises that upon Mr Matson's arrest in Australia, he possessed a passport in the name of Jah Baz. There is no reason for the department to dispute the US' advice regarding Mr Matson's use of aliases. The department is of the view that this would have, to some extent, impacted on the US' ability to locate Mr Matson and conduct their investigation expeditiously. 167 Mr Matson states that he did not have two passports in the name of Philip Fletcher, that he has only ever had one such passport, and has only ever used his legal Australian passport. He also asserts that while he had a passport in the name of "Jah Baz" at the time of his arrest in 2015, that was his legal name at the time. He denies that he used "aliases" or assumed names, and says he has only used his legal name. 168 Mr Matson also notes that the Departmental Advice stated that: …Mr Matson's references to mutual assistance requests made by the US to Australia and vice versa in 2000 and 2005 indicates that the US authorities were actively investigating him at this time and were therefore not yet in a position to seek his extradition. Mr Matson states that he had referred to 2003, not 2005, so the advice was erroneous. 169 Mr Matson submits that the Withheld Documents contained factual material which would have informed the Attorney-General of critical facts regarding the circumstances of the USA's delay between 2000 and 2005 and between 2005 and 2015. He also submits that the Withheld Documents would have assisted in refuting the USA's assertions that Mr Matson and his father were beyond the reach of law enforcement and that the USA had no knowledge of their whereabouts at the time of the superseding indictment in 2005. 170 Mr Matson relies upon passages from Peko-Wallsend. In that case, the High Court considered legislation which provided that where a Commissioner made a report recommending a grant of land and the Minister was satisfied that the grant should be made, the Minister must recommend to the Governor-General that the land be granted. The Commissioner's report was held to be a mandatory relevant consideration. While the Minister had considered the Commissioner's report, he omitted to consider submissions about that report that had been made to his predecessor, and which was on the Department's file, by an affected party. 171 In the leading judgment, Mason J held at 44-45: Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand… In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. 172 In relation to this passage, in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, Kiefel and Bennett JJ said at [80]: Two observations may be made about his Honour's reasoning. The factor being considered, to which the material is relevant, must be essential to the exercise of the discretion before any obligation to examine the most recent and accurate information can arise. That is to say it must partake of the nature of a relevant consideration in the sense we have discussed. And, as was elsewhere pointed out in Peko-Wallsend (at 31 and 45), the Minister was taken to have constructive knowledge of the information because it was on the departmental file. (Citation omitted.) 173 In Peko-Wallsend, Gibbs CJ agreed with Mason J, but added at 30-31: Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law. 174 In Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167, Toohey J said at 179: If an officer of the Department withholds information from the Minister or his delegate, it is no answer to a complaint that the decision-maker failed to take into account a relevant consideration to say that the matter was not before him. That information was constructively before him. And, in my view, if an officer of the Department, albeit innocently, dissuades or discourages a person from giving information that is relevant to the decision to be made, it is no answer to a complaint in terms of s 5(2)(e) to say that the decision-maker did not have the matter before him. It was nevertheless a relevant consideration. Clearly much will depend upon the circumstances of each particular case. 175 Mr Matson's argument that the Attorney-General was bound to properly consider the Withheld Documents, and to convey to him the substance or gist of those documents, cannot succeed for several reasons. 176 The Attorney-General was not required to read the Withheld Documents themselves. As was made clear in Peko-Wallsend by Gibbs CJ at 30-31 (and by Brennan J at 65-66), the Attorney-General cannot be expected to read for himself or herself all of the relevant documents, and may rely upon a summary of the relevant facts furnished by Departmental officers. Accordingly the Attorney-General was not required to consider each of the Withheld Documents themselves. However, as was also made clear in Peko-Wallsend by Gibbs CJ at 31 (and Brennan J at 66), if a Minister relies entirely upon a departmental summary which fails to bring to the Minister's attention a material fact which the Minister is bound to consider, the consequence is that the Minister failed to take into account that material fact. 177 In this case, Mr Matson's argument that the Attorney-General was required to properly consider the Withheld Documents must depend upon there being material facts (facts that the Attorney-General was bound to consider) in the Withheld Documents that were not brought to his attention but which could have affected the Surrender Decision. Mr Matson's argument, insofar as it alleges denial of procedural fairness, then depends upon there being some such facts within the Withheld Documents which ought to have been brought to his attention for him to comment upon which, had he done so, could have affected the Surrender Decision. 178 The difficulty for Mr Matson is that he has not identified any such facts or documents among the Withheld Documents. Mr Matson has set out a schedule in his affidavit sworn on 19 December 2019 which purports to describe the relevance of the Withheld Documents to the Surrender Decision. However, he has not identified material contained in the Withheld Documents which had not already been disclosed to him in the 2018 FOI Documents and which contained relevant material which was not addressed in the Departmental Advice to the Attorney-General or otherwise described in the documents in the Departmental Submission. Further, Mr Matson has not identified any material in the Withheld Documents containing information that the Attorney-General was bound to take into account as a mandatory relevant consideration and which was not taken into account. As I have indicated, the discretion under s 22(3)(f) of the Extradition Act was described as "unfettered" in Rivera at [14]. 179 Mr Matson does no more than assert that he would have done something different if he had received the Withheld Documents prior to the making of the Surrender Decision, but does not indicate what he would have done. To the extent that he asserts that he would have provided submissions about those documents, firstly, he does not indicate what those submissions would have been; and, secondly, that assertion cannot be accepted given that he did not provide representations to the Attorney-General based on any of the 2018 FOI Documents he received before the making of the Surrender Decision. Mr Matson has not demonstrated that, had he received the Withheld Documents before the making of the Surrender Decision, there were submissions that he would have made about those documents that might have affected the outcome. 180 Mr Matson's reliance upon the judgement of Brennan J in Peko-Wallsend at 60-61 is misplaced. His Honour was there considering the Minister's obligation under a particular legislative framework to make enquiries in circumstances where the Department had received an ex parte communication from a party. His Honour did not state a general principle that there is a duty to make enquiries whenever the four circumstances outlined by his Honour are present. In any event, in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39, the High Court held at [25] that it may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, may, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review by the relevant tribunal. However, Mr Matson has failed to identify some critical fact emerging from the Withheld Documents about which an obvious enquiry should have been made. 181 Mr Matson asserts that there was an error in the Departmental Advice in that he did not use any "aliases", but only used the name that was his legal name at the relevant time. He says he only had one passport in the name Philip Fletcher, and, while he had a passport in the name "Jah Baz" at the time of his arrest in 2015, that was then his legal name. It is unclear whether Mr Matson asserts that the Withheld Documents contained material (not found in the 2018 FOI Documents) which would have exposed the errors if the Attorney-General had regard to those documents. He has not identified such material among the Withheld Documents, and I have been unable to find such material. 182 In any event, the Department's comment did not attribute wrongdoing or criminality to Mr Matson, but was made in the context of considering the reasons for the delay by the USA. In that context, what was relevant was that Mr Matson had apparently changed his name several times. The Department considered that the changes of name affected the ability of the USA to locate him. All that the Department appears to have meant by "aliases" was that he had changed his name at least twice. Three matters arise from this. First, I cannot see, in the context, that there was any error in describing Mr Matson as having used aliases. Second, it is difficult to see how, even if Mr Matson had the opportunity to correct the facts by saying that he only had one passport in the name "Philip Fletcher" and had only used his legal names, it could have made any difference to assessment of the issue of delay when considering the Surrender Decision. Third, the errors alleged to have been made by the Department, which may be attributed to the Attorney-General, are at worst errors of fact, but not jurisdictional errors. 183 Mr Matson further asserts that the Departmental Advice incorrectly stated that he had made a reference to mutual assistance requests in 2000 and 2005, which should instead have been references to 2000 and 2003. Again, this was another error of fact, not a jurisdictional error. In any event, I cannot see that the correction of the error could realistically have made a difference to the outcome of the Surrender Decision. 184 Mr Matson submits that the Attorney-General was required to, but did not make, a decision upon the most current material available on the Department's file. There are two difficulties with this submission. First, the submission suggests that there was some recent information amongst the Withheld Documents which the Attorney-General failed to have regard to. However, Mr Matson has not identified such information. Second, the observations of Mason J in Peko-Wallsend at 44-45 were, as was pointed out in Huynh at [80], applicable only to a "relevant consideration", in the sense of a factor that is "essential to the exercise of the discretion". Mr Matson has not pointed to any such factor in the present case. 185 Mr Matson also argues that there might have been documents held by the Department containing information favourable to his case that were not placed before the Attorney-General, nor provided to Mr Matson. However, it is merely speculative to suggest that there are any such documents. Further, Mr Matson was not able to point to any authority indicating that, absent a statutory obligation, a decision may be invalid merely by reason that some documents in a Department's possession favourable to a person aggrieved by the decision were not placed before the decision-maker. It may be noted that when Mr Matson was later represented in the interlocutory hearing on 25 June 2020, his counsel were similarly unable to point to any such authority. It might be thought unlikely that a decision-maker or Department is required to trawl through every piece of information in the Department's possession looking for matters that might conceivably be beneficial to the aggrieved person, particularly where the person has been given the opportunity to make representations as to why an adverse decision should not be made. I will consider Mr Matson's submission that documents may have been deliberately withheld from the Attorney-General in the section of these reasons dealing with allegations of bad faith. 186 To the extent that Mr Matson alleges that the Attorney-General failed to "properly consider" the documents in Grounds (f) and (g), that argument cannot succeed. 187 Ground (h) alleges that there was a denial of procedural fairness because Mr Matson was provided with 20 "misleading official communications" in his dealings with the Department, mainly in relation to his FOI requests. These appear to be the communications described in his affidavits sworn on 4 and 9 September 2019 as follows:

1. Letter from David Reed regarding "Arrest pursuant to the Extradition Act 1988 (Cth)" dated October 2015 This letter set out three options as to how Mr Matson could proceed with respect to his arrest pursuant to an extradition arrest warrant. The letter is alleged to be misleading on the basis that it failed to inform Mr Matson of his legal right to seek judicial review of the decision of the Minister of Justice to issue the "Notice of receipt of extradition request", or of the decision by a Magistrate to issue the "extradition arrest warrant". There is no indication as to how this communication misled Mr Matson, nor how it caused him practical injustice.
2. Letter from Mark Gray regarding "Freedom of Information request - FOI17/034" dated March 2017 This letter concerned Mr Matson's FOI Request FOI17/034, which sought access to all Department documents in relation to Mr Matson for the period from 1997 to 2017. The letter informed Mr Matson that a search of the Department's electronic document management system had returned approximately 650 documents (6,600 pages) likely to be within the scope of the FOI Request, and advised Mr Matson that the request had been refused due to the substantial number of documents. The letter is alleged to be misleading on the basis that an email from the Department to the Department of Foreign Affairs and Trade dated 23 October 2017 indicated that there were in fact over 7,000 pages within the scope of the FOI Request, a discrepancy of some 400 pages of material. Mr Matson submits that the 400 pages correlate with the 400 pages of additional material (over 70 documents) that comprised the "Withheld Documents" provided to him on 4 July 2019. However, as I discussed in relation to Grounds (f) and (g), Mr Matson has not indicated how the Withheld Documents could have affected the outcome of the Surrender Decision. Therefore, there is no indication as to how this discrepancy in the number of pages located by the Department caused Mr Matson practical injustice.
3. Letter from Leanne Loan regarding "Freedom of Information request - FOI17/034" dated 20 December 2017 This letter concerned Mr Matson's Revised FOI Request FOI17/034, which sought access to all Department documents in relation to Mr Matson for the period from 1 January 2003 to 31 December 2006. The letter notified Mr Matson that 63 documents were located as falling within the scope of his FOI Request. Those documents redacted the names of Senior Executive Officers of the Department, which is alleged to be inconsistent with a regular FOI practice that the names of senior officers will generally be disclosed. The letter is alleged to be misleading on the basis of the redaction of the names of Senior Executive Officers, particularly David Reed. Mr Matson states that a Revised FOI Decision dated 19 June 2019 found that Ms Loan had unjustifiably withheld and redacted Mr Reed's name some 94 times throughout the 63 documents disclosed to Mr Matson. However, the Revised FOI Decision in question states that the disclosure of the names of some Government officials throughout the FOI Requests was "erroneous". Mr Reed's name had been accidentally disclosed to Mr Matson in the initial FOI Decision, and so exemption of his name was not maintained and his name was not redacted in the Revised FOI Decision. There is no indication as to how this communication misled Mr Matson, nor how it caused him practical injustice.

Unreasonableness 188 Mr Matson alleges in Grounds (o), (p), (q), (r), (s), (t), (v), (aa), (cc), (ee) and (mm) that the Surrender Decision was unreasonable. 189 In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Kiefel CJ succinctly described the ground of legal unreasonableness at [10]: In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. 190 The Full Court in Singh v Minister for Home Affairs (2019) 267 FCR 200 at [61] provided the following exposition of the ground: The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power. Such a conclusion might be drawn, for example, if it: (1) is "illogical", though an inference of unreasonableness will not be supported merely because a decision appears to be irrational; (2) "lacks an evident and intelligible justification"; (3) is plainly unjust, arbitrary, capricious or lacking in common-sense. (Citations omitted.) 191 Ground (o) alleges that the decision was unreasonable on the basis that insufficient weight was given to Mr Matson's Indigenous heritage and the consequences and likely hardship that would be caused to him and his family as First Nations people by surrendering him and potentially permanently separating him from his family, community, culture and country. 192 In Peko-Wallsend, Mason J said at 41: It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". (Citations omitted.) 193 Accordingly, unreasonableness may be established on the basis of a failure to give adequate weight to a relevant factor of great importance. However, Mason J emphasised at 42 that, "a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits". 194 Section 22(3)(a) of the Extradition Act required the Attorney-General to be satisfied that there is no "extradition objection" in relation to the offence. Under s 7(b), an extradition objection includes, relevantly, that the surrender of the person is actually sought for the purpose of prosecuting or punishing the person on account of their race; and, under s 7(c), that the person may be punished, detained or restricted in their personal liberty by reason of their race. 195 Mr Matson deposes that he is an Indigenous person, and that claim has not been disputed. In his affidavit filed on 24 June 2016, which was placed before the Attorney-General, Mr Matson raised both his Australian nationality and Indigenous race in the context of s 7(c), although he provided no detail about the relevance of his race. Further, at [35] of my reasons in respect of the First Instance Proceeding, which were placed before the Attorney-General, I observed that Mr Matson's solicitor had submitted that, "he is of Indigenous heritage and that would have an effect on him being incarcerated for any lengthy period there". Mr Matson did not explain what effect his Indigenous heritage would have on his incarceration in the USA. 196 The Departmental Advice addressed the issues arising under ss 7(b) and (c) as follows: 28. The department has no information suggesting that the US is seeking Mr Matson's extradition for an ulterior purpose and Mr Matson does not assert that this may be the case. The material provided by the US is consistent with a request made for the legitimate purpose of the administration of criminal justice in the US for serious offences, namely fraud related offences. 29. Accordingly, the department considers you may be satisfied that this objection is not made out in relation to Mr Matson. … 34. In his judgement dated 21 October 2016, Rangiah J noted that while Mr Matson had pointed to prejudice, there was no evidence that any prejudice Mr Matson might suffer would be because of his race or nationality. Mr Matson has not provided any evidence by way of representations to the department to substantiate his claim that he will be prejudiced at his trial or punishment by reason of his nationality as an Australian citizen or by virtue of his indigenous heritage. 35. The department does not consider that there is a direct casual connection between any of the other factors identified by Mr Matson and the prejudice suffered at trial or punishment by way of race or nationality. In particular, the department notes the following: a. it is not apparent to the department that there is an established history in the US of persons being prejudiced at trial or punishment, detention or restriction in personal liberty by reason of their Australian nationality or indigenous heritage. … 197 Mr Matson's race was also considered in the context of the exercise of the discretion under Art V of the USA Extradition Treaty to refuse to surrender him. The Departmental Advice stated, "the department does not consider that Mr Matson's Australian citizenship or indigenous heritage warrants the exercise of your discretion to refuse to surrender him". 198 The Attorney-General was plainly aware that Mr Matson was of Indigenous heritage and that a decision to surrender Mr Matson would result in his removal from Australia. The Attorney-General was also aware that the maximum penalty was up to 20 years' imprisonment in respect of two of the qualifying extradition offences, so that Mr Matson could face a lengthy period of imprisonment in the USA if ultimately convicted. Mr Matson did not explain how or why his Indigenous heritage would make his removal to the USA and possible imprisonment more onerous for him. He did not explain how his Indigenous heritage would make his removal to the USA more onerous for his family or community. The Attorney-General considered Mr Matson's Indigenous heritage and the consequences and likely hardships of extradition. It has not been demonstrated that these factors were of such importance that the Attorney-General must have failed to give sufficient weight to them, or that the decision was otherwise unreasonable. The allegation of unreasonableness in Ground (o) has not been established. 199 Ground (p) alleges unreasonableness on the basis that the Attorney-General misconstrued Art V of the USA Extradition Treaty by failing to properly form the opinion or requisite state of satisfaction that it was "proper" to surrender Mr Matson to the USA in his particular circumstances. 200 Article V of the USA Extradition Treaty provides that: (1) Neither of the Contracting Parties shall be bound to deliver up its own nationals under this Treaty but the executive authority of each Contracting Party shall have the power to deliver them up if, in its discretion, it considers that it is proper to do so. 201 Article V of the USA Extradition Treaty was considered in the Departmental Advice as follows: 59. As a matter of long-standing policy, Australia does not refuse extradition on the basis of nationality alone and we consider there to be no basis for departing from that position in this case. This is a policy position that Australia shares with other liked minded countries such as the United Kingdom, Canada and the US. The department does not consider that there is any particular circumstance in respect to Mr Matson which should cause a deviation from this policy position. 60. In addition, the department notes that the High Court of Australia has confirmed that Australian citizens do not enjoy constitutional immunity against removal from Australia in accordance with due process of law. This includes removal for extradition purposes. 61. Further, the department notes the legitimate interest held by the US in pursuing Mr Matson's prosecution. Accordingly, the department does not consider that Mr Matson's Australian citizenship or indigenous heritage warrants the exercise of your discretion to refuse to surrender him to the US. 202 The Departmental Advice provides an evident and intelligible justification for the exercise of the discretion, including the legitimate interest of the USA in prosecuting Mr Matson. The Attorney-General followed the Department's advice. The Attorney-General's exercise of discretion with respect to whether it was "proper" to surrender Mr Matson was not legally unreasonable. The allegation of unreasonableness in Ground (p) has not been established. 203 Ground (q) alleges unreasonableness on the basis that the Attorney-General failed to give proper, genuine and realistic consideration to Mr Matson's Indigenous heritage in determining whether or not to exercise his discretion under Article V of the USA Extradition Treaty. There is no requirement under Art V of the USA Extradition Treaty to consider a person's Indigenous heritage. However, the Attorney-General, in fact, expressly considered Mr Matson's Indigenous heritage, and I cannot see that he did not give proper, genuine and realistic consideration to, or that the decision is unreasonable by reason of inadequate weight being given to, that factor. The allegation of unreasonableness in Ground (q) has not been established. 204 Ground (r) alleges unreasonableness on the basis that the Attorney-General failed to consider the USA's failure to provide a formal written assurance that the three years Mr Matson has already spent in maximum security prison would be deducted from any sentence imposed in the USA. That statement of the ground may suggest that the USA, having been asked for such an assurance, failed to give it. However, it is not apparent that any such request was made, whether by Mr Matson or anyone else. 205 Under s 22(3) of the Extradition Act, an eligible person may only be surrendered if the requirements in paras (a)-(f) are fulfilled. The general discretion in s 22(3)(f) was described in Rivera at [14] as "unfettered" and allowing the Attorney-General to "take into account any matters, or no matters". The Attorney-General, accordingly, had no obligation to take any particular matter into account in the exercise of this discretion: see also Snedden at [151]. 206 There was no requirement that the Attorney-General take into account whether the time already served by Mr Matson would be deducted from any sentence to be imposed in the foreign country. 207 The Surrender Decision does not specifically consider whether the USA would deduct Mr Matson's time in custody from any sentence to be imposed, nor did Mr Matson ask that this matter be taken into account in making the decision under s 22(2). The Attorney-General was well aware of the length of time Mr Matson had spent in custody. The bulk of that time was a consequence of the exercise of his legal entitlement to challenge the extradition process. The Departmental Submission addressed human rights concerns that Mr Matson had raised and concluded that, "there are adequate safeguards in place to protect Mr Matson's ability to access a fair trial if he is surrendered to the US". Mr Matson has not admitted guilt, and it is far from clear that the need for him to be sentenced will ever arise. I do not consider that the "failure" of the USA to provide a formal written assurance that Mr Matson's time in custody in Australia would be deducted from any sentence imposed in the USA renders the Surrender Decision unreasonable. The allegation of unreasonableness in Ground (r) has not been established. 208 Ground (s) alleges unreasonableness on the basis that the Attorney-General failed to properly consider all of the facts and circumstances of Mr Matson's case. 209 Section 22(2) of the Extradition Act requires the Attorney-General to have regard to the circumstances, and s 22(3)(f) gives the Attorney-General a discretion to consider whether the person should be surrendered in relation to the offence. 210 The Departmental Advice provides a detailed consideration of Mr Matson's case, and specific consideration of the requirements in paras (a)-(f) of s 22(3). In the absence of specification of which facts and circumstances were not properly considered by the Attorney-General, the allegation of unreasonableness in Ground (s) has not been established. 211 Ground (t) alleges unreasonableness on the basis that the Attorney-General failed to consider that the USA failed to provide a further formal written assurance that Mr Matson would not be exposed to receiving a disproportionately excessive sentence. This ground is similar to Ground (r). It is not apparent that the USA has been asked for such an assurance. 212 The Departmental Advice concluded that, "The US has a robust institutional framework for the protection of human rights", and, "there are adequate safeguards in place to protect Mr Matson's ability to access a fair trial if he is surrendered to the US". Accordingly, there is no basis for the suggestion that Mr Matson may receive "a disproportionately excessive sentence". The Surrender Decision is not rendered unreasonable by any failure to provide an assurance that Mr Matson would not be exposed to such a sentence. The allegation of unreasonableness in Ground (t) has not been established. 213 Ground (v) alleges that the decision of the Attorney-General not to exercise the discretion under Art V of the USA Extradition Treaty and s 22(3)(f) of the Extradition Act was unreasonable, particularly having regard to Mr Matson's nationality, his Indigenous heritage and his "special connection" to Australia. 214 I have referred earlier to consideration of Mr Matson's nationality in the context of considering Art V of the USA Extradition Treaty. There is plainly an intelligible basis for determining the issue against him. The decision was not unreasonable on that basis. 215 Ground (v), and a number of other grounds, refer to Mr Matson's "special connection" with Australia. The grounds do not explain the nature of this "special connection", except that it is asserted to come from Mr Matson's Indigenous heritage. 216 At the hearing on 18 November 2019, I indicated that if my judgment remained reserved when the judgment in Love and Thoms was handed down, Mr Matson could make written submissions about the case. At the interlocutory hearing on 25 June 2020, Mr Matson's legal representatives disclaimed reliance on that case. However, at the hearing on 28 August 2020, Mr Matson again sought to rely upon Love and Thoms. In particular, he referred to the following passages from the judgment of Nettle J: 276 ... Underlying the Crown's unique obligation of protection to Australian Aboriginal societies and their members as such is the undoubted historical connection between Aboriginal societies and the territory of Australia which they occupied at the time of the Crown's acquisition of sovereignty. As is now understood, central to the traditional laws and customs of Aboriginal communities was, and is, an essentially spiritual connection with "country", including a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations. Ignorance of those connections, and of their potential significance at common law, justified the early dispossession of Aboriginal peoples in the decades after 1788. But by the mid-nineteenth century, James Dredge, the Assistant Protector of Aborigines at Port Phillip, could acknowledge that those connections were "sacredly recognised from one generation to another" and that, within the "boundaries of their own country, as they proudly speak, they feel a degree of security and pleasure which they can find nowhere else". And even that was a profound understatement of the position, which Michael Dodson has since explained thus: "Everything about Aboriginal society is inextricably interwoven with, and connected to, the land. Culture is the land, the land and spirituality of Aboriginal people, our cultural beliefs or reason for existence is the land. You take that away and you take away our reason for existence. ... Removed from our lands, we are literally removed from ourselves." A connection of that kind runs deeper than the accident of birth in the territory or immediate parentage. 277 Being a matter of history and continuing social fact, an Aboriginal society's connection to country is not dependent on the identification of any legal title in respect of particular land or waters within the territory. The protection to which it gives rise cannot be cast off by an exercise of the Crown's power to extinguish native title. So much was acknowledged as early as 1837, when Lord Glenelg, the Secretary of State for War and the Colonies, instructed Sir Richard Bourke, the Governor of New South Wales, as follows: "all the natives inhabiting those Territories must be considered as Subjects of the Queen, and as within HM's Allegiance. To regard them as Aliens with whom a War can exist, and against whom HM's Troops may exercise belligerent right, is to deny that protection to which they derive the highest possible claim from the Sovereignty which has been assumed over the whole of their Ancient Possessions." 278 So long as an Aboriginal society which enjoyed a spiritual connection to country before the Crown's acquisition of sovereignty has, since that acquisition of sovereignty, remained continuously united in and by its acknowledgment and observance of laws and customs deriving from before the Crown's acquisition of sovereignty over the territory, including the laws and customs which allocate authority to elders and other persons to decide questions of membership of the society, the unique obligation of protection owed by the Crown to the society and each of its members in his or her capacity as such will persist. (Citations omitted.) 217 The "special connection" referred to in the Draft Amended Originating Application seems to be a "spiritual connection" of the type described by Nettle J in Love and Thoms. 218 The Attorney-General was not bound to take any "spiritual connection" into account when exercising the discretion under s 22(3)(f) of the Extradition Act: cf Rivera at [14]; Snedden at [151]. 219 Further, Mr Matson did not squarely or clearly raise any "spiritual connection" to Australia as a ground for making the decision under s 22(2) of the Extradition Act in his favour: cf NABE at [58]-[60]. He had made three references to his Indigenous heritage in the material in the First Instance Proceeding and the Full Court Proceeding. The first, described in my judgment in the First Instance Proceeding at [35], was that his Indigenous heritage, "would have an effect on him being incarcerated for any lengthy period there". That submission did not mention any spiritual connection. The second was in Ground 10 of the Notice of Appeal in QUD 51 of 2017 which asserted that the primary judge erred in concluding he had not identified any basis for the assertion that his Indigenous heritage makes his detention particularly arduous. The third was in Ground 25 of that Notice of Appeal, and asserted that the primary judge erred in concluding that a potential 305 year prison sentence was not relevant and did not constitute special circumstances, "particularly as an indigenous Australian, the first peoples of this nation whom have suffered injustice and inequality since federation". None of these matters squarely or clearly raised any hardship to Mr Matson by reason of loss of his "spiritual connection" to Australia. Further, QUD 51 of 2017 was the application for leave to appeal against my refusal of bail, which was later abandoned, so the grounds also appeared to be abandoned. The Attorney-General was not required to take any "spiritual connection" into account. 220 However, the Departmental Advice specifically recommended, and the Attorney-General accepted, that Mr Matson's Indigenous heritage did not warrant the exercise of the discretion in his favour. The Attorney-General's decision provides an evident and intelligible justification for that position, namely the countervailing factor of the legitimate interest of the USA in pursuing Mr Matson's prosecution. The decision was not one that no reasonable person could have made. Ground (v) has not been established. 221 Ground (aa) alleges that the Attorney-General's conclusion that it was "proper", in the context of Art V of the USA Extradition Treaty, to surrender Mr Matson to the USA was a view of the facts that was unreasonable. This is essentially the same allegation made in Ground (p). For the same reasons, I do not consider that the exercise of discretion against Mr Matson was unreasonable. Ground (aa) has not been established. 222 Ground (cc) alleges that the Surrender Decision was affected by jurisdictional error on the basis that the Attorney-General's evaluation or judgment, "went beyond the range where it could have permissibly gone either way, thereby committing an error of law". This appears to be an allegation of unreasonableness. However, the Surrender Decision has an evident and intelligible justification, and cannot be described as one that no reasonable decision-maker would have made. Ground (cc) has not been established. 223 Ground (ee) alleges unreasonableness on the basis that no reasonable decision-maker would have drawn the same factual inferences or conclusions on the evidence before the Attorney-General. This is a broad allegation for which no basis has been provided beyond that included in the other unreasonableness grounds already considered. The Departmental Advice provides a detailed consideration of the evidence and the requirements set out in ss 22(2) and (3) of the Extradition Act. The Surrender Decision has an evident and intelligible justification, and cannot be described as one that no reasonable decision-maker would have made. Ground (ee) has not been established. 224 Ground (mm) contains a number of sub-paragraphs, which each makes a separate allegation of unreasonableness. I will consider each sub-paragraph as a separate ground. 225 Ground (mm)(i) alleges that the Surrender Decision was so unreasonable that no reasonable person could have come to it, and that no sensible decision-maker would so decide. This allegation is expressed in similar terms to Ground (ee). For the same reasons, Ground (mm)(i) is not established. 226 Ground (mm)(ii) alleges unreasonableness on the basis that the Attorney-General failed to properly deliberate in the exercise of his discretion and thereby failed to discharge his statutory duty to properly consider all of the facts and circumstances. This allegation is similar to Ground (s). For the same reasons, Ground (mm)(ii) is not established. 227 Ground (mm)(iii) alleges unreasonableness on the basis that the Attorney-General oppressively and gratuitously interfered with Mr Matson's fundamental rights in a way that could not be reasonably justified. In the absence of any particularisation of how the Attorney-General interfered with Mr Matson's fundamental rights, Ground (mm)(iii) is not established. 228 Ground (mm)(iv) alleges unreasonableness on the basis that the Attorney-General failed to show respect for the dignity of Mr Matson as an Indigenous Australian citizen by giving no consideration to his "special connection" to Australia or to the grave consequences and hardship likely to occur if Mr Matson was surrendered to the USA. As discussed in relation to Grounds (o) and (v), Mr Matson's race and the consequences and hardship he would face if surrendered, including his separation from Australia, were considered. Ground (mm)(iv) is not established. As discussed in relation to Ground (v), his "spiritual connection" was not clearly or squarely raised and there was no error in failing to consider it. 229 Ground (mm)(v) alleges unreasonableness on the basis that the Attorney-General accepted the Department's recommendation to surrender Mr Matson, without seeking further information or requesting to "discuss" his Indigenous heritage and "special connection" to Australia. There is no requirement in s 22 to consider the "special connection" of Indigenous persons to Australia, nor to make further inquiries about such matters. Mr Matson's Indigenous heritage and the consequences and hardships he would face were considered. Ground (mm)(v) is not established.

Irrational, illogical or arbitrary 230 Mr Matson alleges in a number of grounds that the Surrender Decision was "seriously irrational and illogical" or "wholly irrational and arbitrary", and as such amounted to jurisdictional error. Such allegations are made in Grounds (o), (p), (q), (r), (s), (t), (x), (dd), (ee) and (nn), a number of which have already been considered in respect of allegations that the Surrender Decision was unreasonable. 231 Grounds (o), (p), (q), (r), (s) and (t) make no distinction between the allegations of unreasonableness and the allegations of irrationality and illogicality. For the reasons I have already given in relation to the allegations of unreasonableness, I conclude that these grounds based on irrationality and illogicality have not been established. 232 Ground (x) alleges that the Attorney-General's decision to exclude "factual material" was "wholly irrational and arbitrary, and was tantamount to a refusal to consider a matter". In the absence of any particularisation of what "factual material" was excluded, Ground (x) has not been established. 233 Ground (dd) alleges, amongst other things, that the Attorney-General, "constructively failed to exercise jurisdiction by…deciding irrationally". In the absence of any particularisation or argument as to why the decision was irrational, Ground (dd) has not been established. 234 Ground (ee) alleges that the Attorney-General, "treated express and implied mandatory factors irrationally and illogically". However, it is not indicated which mandatory factors were treated irrationally and illogically. Ground (ee) has not been established. 235 Ground (nn) alleges that the Surrender Decision was "seriously irrational and illogical" on the basis that the Attorney-General failed to give sufficient weight to a number of factors, set out in sub-paragraphs (i)-(vi). However, the ground essentially asserts, as was alleged in Ground (o), that the decision was unreasonable because insufficient weight was given to certain factors. I have already discussed unreasonableness and weight, including the point emphasised by Mason J in Peko-Wallsend at 42 that a court should proceed with caution, lest it exceed its supervisory role by reviewing the decision on its merits. 236 I will consider each sub-paragraph in Ground (nn) as a separate ground. 237 Ground (nn)(i) alleges that the Attorney-General gave inadequate or insufficient weight to, "the Applicant's evidence, arguments and contentions raised in all material and submissions filed in the Applicant's judicial review applications before the Full Federal Court [in] QUD 89, 569 and 844 of 2016 and [Q]UD 51 of 2017". This ground again relies on the letter from Mr Morris QC dated 7 June 2018. As discussed earlier in these reasons, I have rejected the allegation that Mr Morris QC had requested that all documents filed in the proceedings before the Full Court be placed before, or summarised for, the Attorney-General. It was therefore not unreasonable that the Attorney-General did not have regard to "all" material and submissions before the Full Court. I otherwise find that the Attorney-General gave adequate consideration to the material that was placed before him, including the judgments at first instance and in the Full Court, as well as Mr Matson's submissions. Ground (nn)(i) has not been established. 238 Ground (nn)(ii) alleges that the Attorney-General gave inadequate or insufficient weight to, "the Applicant's indigenous heritage and "special connection" to Australia, or to the Applicant's contentions…that any surrender order…would be unjust, oppressive or too severe a punishment, or incompatible with "humanitarian considerations" (namely because of the Applicant's indigenous heritage and that any lengthy sentence would have an effect on him)". 239 The first aspect of this ground, that insufficient weight was given to Mr Matson's Indigenous heritage, was also raised in Ground (o). For the reasons I gave in respect of Ground (o), I do not consider that the Attorney-General failed to give sufficient weight to Mr Matson's Indigenous heritage and the hardship he would face, including as a result of being removed from Australia. The Departmental Advice, which formed the Attorney-General's reasons, provided an evident and intelligible justification for the conclusion reached, and there is no basis for the allegation that the weight given to Mr Matson's Indigenous heritage or his connection to Australia was inadequate. 240 The second aspect of this ground is that the surrender would be unjust, oppressive or too severe a punishment, or incompatible with "humanitarian considerations". The Departmental Advice addressed human rights considerations in detail, and concluded that: 143. In light of the robust framework for the protection of human rights in the US and the absence of credible information to suggest that Mr Matson's fundamental rights have been breached having regard to his circumstances, the department does not consider Mr Matson's representations to be sufficiently compelling to warrant you to exercise your discretion not to surrender him to the US. 241 The Departmental Advice provided an evident and intelligible justification for the conclusion reached. Therefore, I do not consider that the Surrender Decision was irrational or illogical on the basis of the weight given to these considerations. Ground (nn)(ii) is not established. 242 Ground (nn)(iii) alleges that the Attorney-General gave no consideration or weight to the applicable "Australian standard" as to whether extradition of Mr Matson would in the circumstances be unjust, oppressive or too severe a punishment, or incompatible with "humanitarian considerations". 243 Section 22(3)(e) of the Extradition Act requires the Attorney-General to consider any limitations, conditions, exceptions or qualifications found within a bilateral extradition treaty between Australia and the requesting country. Such limitations are found in Art VII of the USA Extradition Treaty, which sets out circumstances where extradition will not be granted: ARTICLE VII (1) Extradition shall not be granted in any of the following circumstances: (a) when the person whose extradition is requested is being proceeded against, has been tried and discharged or punished, or has been pardoned, in the territory of the requested State for the offence for which his extradition is requested; (b) when the prosecution for the offence has become barred by lapse of time according to the laws of the requesting State; or (c) when the offence in respect of which extradition is requested is of a political character, or the person whose extradition is requested proves that the extradition request has been made for the purpose of trying or punishing him for an offence of a political character. (2) If any question arises whether a case comes within the provisions of subparagraph (c) of paragraph (1) of this Article, the requested State shall decide that question. 244 Mr Matson's submission that the Attorney-General was required to consider "Australian standards" comes from the judgment of the High Court in Commonwealth Minster for Justice v Adamas (2013) 253 CLR 43. The High Court there considered a treaty between Indonesia and Australia which provided that extradition may be refused where Australia considers that extradition would be "unjust, oppressive or incompatible with humanitarian considerations". The High Court concluded at [34] that this expression encapsulated a single broad evaluative standard to be applied alike by each contracting state. The High Court held that the relevant standards included Australian standards and the standards of each contracting state, as well as international standards, but none was determinative. 245 However, there is no requirement in the USA Extradition Treaty to consider whether extradition would be "unjust, oppressive or incompatible with humanitarian considerations". Therefore, there was no requirement that the Attorney-General consider or give weight to Australian standards in that context. The Surrender Decision was not irrational or illogical on the basis of the Attorney-General's failure to do so. Ground (nn)(iii) has not been established. 246 Ground (nn)(iv) alleges that the Attorney-General gave inadequate or insufficient weight to, "the Applicant's fundamental human rights protected under international law", specifically rights under Art 14(3)(a) and (c) of the ICCPR to "promptly notify" Mr Matson of the charges against him, and bring the matter to trial without "undue delay". 247 The Departmental Advice specifically addressed human rights considerations in the context of the general discretion under s 22(3)(f) of the Extradition Act. In particular, the advice summarised various articles of the ICCPR that had been asserted by Mr Matson to have been breached, including Art 14. The Departmental Advice addressed the rights protected under the ICCPR as follows: 140. The US is also a party to the ICCPR. In the US the ICCPR applies to all government entities and agents, including all state and local governments. Countries that have ratified the ICCPR are obligated to protect and preserve basic human rights including freedom from torture and ill-treatment. The ICCPR compels state parties to take administrative, judicial and legislative measures to protect the rights enshrined in the ICCPR and to provide effective remedies. 248 The Departmental Advice went on to conclude that: 143. In light of the robust framework for the protection of human rights in the US and the absence of credible information to suggest that Mr Matson's fundamental rights have been breached having regard to his circumstances, the department does not consider Mr Matson's representations to be sufficiently compelling to warrant you to exercise your discretion not to surrender him to the US. 249 The Departmental Advice addressed Mr Matson's "fundamental human rights protected under international law". Further, the Departmental Advice specifically considered Mr Matson's allegations of delay by the USA, including delay between the alleged offences and the issuing of an indictment, and then delay in making the extradition request. The Departmental Advice provided an evident and intelligible justification for the weight given to these issues. The Surrender Decision was not irrational or illogical on the basis of the weight given to these considerations. Ground (nn)(iv) has not been established. 250 Ground (nn)(v) alleges that the Attorney-General gave inadequate or insufficient weight to, "the Applicant's right to a fair trial in the US or to the applicable "Australian Standard" of a fair trial, including to the prejudice faced by the Applicant in the US, which can be presumed after such a lengthy delay". 251 The first aspect of this ground is that insufficient weight was given to Mr Matson's right to a fair trial. 252 The Departmental Advice addressed the issue of whether Mr Matson would have a fair trial, ultimately concluding that, given the robust framework for the protection of human rights in the USA, there was not sufficiently compelling evidence to warrant the Attorney-General exercising his discretion not to surrender Mr Matson to the USA. There was an evident and intelligible justification for the weight given to this issue. 253 The second aspect of Ground (nn)(v) is that insufficient weight was given to the applicable "Australian standard" of a fair trial. Mr Matson's contention again seems to rely on Adamas, which has already been considered and found not to arise in the context of the USA Extradition Treaty. In any event, the Departmental Advice at [138] discussed Australian standards of a fair trial, and concluded that the USA has similar "protections and guarantees" as those applying in Australia. Ground (nn)(v) has not been established. 254 Ground (nn)(vi) alleges that the Attorney-General gave inadequate or insufficient weight to Australia's non-refoulement obligations under the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), which the Attorney-General was "bound" to consider in circumstances where Mr Matson had specifically raised evidence, arguments and contentions of torture and cruel and unusual punishment under Art 7 of the ICCPR and the CAT. 255 There is no express requirement under the Extradition Act to consider Australia's non-refoulement obligations. However, the Departmental Advice acknowledged that s 22(3)(b) of the Extradition Act is, "designed to implement Australia's non-refoulement obligations with respect to torture under the [CAT]". The Departmental Advice specifically addressed Australia's obligations as follows: 47. The department is not aware of any information suggesting Mr Matson will be in danger of being subjected to torture within the meaning of paragraph 22(3)(b) in the event that he is surrendered to the US. Further, the department notes that the US is a party to the following multilateral instruments containing a prohibition on torture: • CAT • International Covenant on Civil and Political Rights. 48. Accordingly, in light of the above, the department considers that you may be satisfied that there are no substantial grounds for believing that, if surrendered to the US, Mr Matson would be in danger of being subjected to torture within the meaning of paragraph 22(3)(b) of the Extradition Act. 256 The Departmental Advice addressed Australia's non-refoulement obligations in the context of Mr Matson's allegations of torture and cruel and unusual punishment, and provided an evident and intelligible justification for the weight given to it. The Surrender Decision has not been shown to be irrational or illogical on the basis of the weight given to these considerations. Ground (nn)(vi) has not been established.

Failure to take into account relevant considerations 257 Mr Matson makes a number of allegations that the Attorney-General failed to take into account relevant considerations, or "failed to consider", "excluded", or "completely discounted" certain factual material in making the Surrender Decision. These allegations are made in Grounds (u), (w), (x), (y), (dd), (hh), (kk), (rr) and (vv). 258 I have already referred to the exposition of the ground of failure to take into account a relevant consideration given by Mason J in Peko-Wallsend at 39-41. 259 Ground (u) alleges that the Attorney-General failed to consider two separate matters: firstly, the applicable "Australian Standard", and secondly, Mr Matson's Indigenous heritage. 260 As has been discussed in Ground (o), the Attorney-General considered Mr Matson's Indigenous heritage in the context of s 22(3)(a) of the Extradition Act and Art V of the USA Extradition Treaty. There was otherwise no requirement that Mr Matson's Indigenous heritage be considered. 261 The reference to the applicable "Australian Standard" appears to be a submission that the Attorney-General failed to assess whether the surrender of Mr Matson would be unjust, oppressive or incompatible with humanitarian considerations when assessed against Australian standards. As discussed with respect to Ground (nn)(iii), consideration of the "Australian Standard" was relevant in the context of the extradition treaty considered in Adamas, but there is no such requirement in the USA Extradition Treaty. In any event, the Departmental Advice did consider Australian standards of a fair trial in the context of the ICCPR, and concluded that the USA has similar protections and guarantees. Ground (u) has not been established. 262 Grounds (w), (x), (y) and (dd) each make substantially the same allegation, namely that the Attorney-General failed to consider Mr Matson's factual material, evidence, arguments and contentions. There is no particularisation of what factual material, evidence, arguments or contentions were not considered. In the absence of adequate particularisation, these grounds have not been established. 263 Ground (hh) alleges that the Attorney-General, "rigidly and inflexibly applied a policy position", which resulted in a failure to consider, "the Applicants indigenous heritage and "special connection" to Australia; and… the legal option provided for under Article V(l) of the Treaty of refusing extradition on grounds of "Nationality"…". 264 As discussed with respect to Ground (o), the Attorney-General did consider Mr Matson's Indigenous heritage in the context of s 22(3)(a) of the Extradition Act and Art V of the USA Extradition Treaty. There was otherwise no requirement under s 22 that Mr Matson's Indigenous heritage be considered. 265 The ground also alleges failure to consider the option to refuse extradition on the grounds of "nationality" under Art V of the USA Extradition Treaty. As discussed with respect to Ground (p), the Departmental Advice expressly considered the option to refuse extradition on the grounds of nationality. 266 Ground (hh) also alleges that the Attorney-General inflexibly applied a policy position. The Departmental Advice did apply a long-standing policy that Australia does not refuse extradition on the basis of nationality alone. The Department went on to say that it considered "there to be no basis for departing from that position in this case". Further, it did not consider, "that there is any particular circumstance in respect to Mr Matson which should cause a deviation from this policy position". Accordingly, consideration was given to whether the policy position should be departed from in the circumstances of the case. The policy was not inflexibly applied. Ground (hh) has not been established. 267 Ground (kk) alleges that the Attorney-General, "failed to exercise jurisdiction by failing to take account of relevant/mandatory considerations". The relevant considerations are set out in sub-paragraphs (i)-(vi). I will address each sub-paragraph as a separate ground. 268 Ground (kk)(i) alleges that the Attorney-General failed to take into account, "arguments, evidence and contentions raised in the material and submissions filed in the Applicant's judicial review applications QUD 89, 569 and 844 of 2016". This ground again relies on the letter from Mr Morris QC dated 7 June 2018. As discussed earlier in these reasons, I have rejected the allegation that Mr Morris QC had requested that all documents filed in the proceedings before the Full Court be placed before, or summarised for, the Attorney-General. There was otherwise no requirement in the Extradition Act for such material to be taken into account. In any event, I have found that the Attorney-General did take into account the material that was placed before him. Ground (kk)(i) has not been established. 269 Ground (kk)(ii) alleges that the Attorney-General failed to take into account, "the historical Attorney-General's Department, Australian Federal Police, US Department of Justice, F.B.I. and Interpol documents, files, communications and correspondence between 1997 to 2019 in relation to the Applicant and his father's extradition matter". There is no requirement in the Extradition Act for such material to be taken into account as a relevant consideration when determining whether to surrender an eligible person under s 22(2). Ground (kk)(ii) has not been established. 270 Ground (kk)(iii) alleges that the Attorney-General failed to take into account, "the Applicant's contentions… that any surrender order would be unjust and oppressive ... by reason of delay ... and further that any punishment in the US would be likely to be unjust and oppressive and too severe a punishment by virtue of the maximum penalties set there and also the sentencing regime, which has a tendency to accumulate sentences; and because he is of indigenous heritage…". This ground is essentially in identical terms to Ground (b). I concluded that each of the arguments raised in Ground (b), which are also raised in Ground (kk)(iii), were addressed in the Departmental Advice. Therefore, I do not accept that there was a failure to take into account the matters raised in Ground (kk)(iii). Ground (kk)(iii) has not been established. 271 Ground (kk)(iv) alleges that the Attorney-General failed to take into account two separate considerations: first, the principle that when a requesting government has been inexcusably dilatory in seeking to bring the respondent to justice, then this may establish the necessary injustice and oppressiveness; and second, a sense of false security engendered in the defendant. 272 The allegation that the Attorney-General failed to take into account "a sense of false security engendered in the defendant" was also made in Ground (c). For the reasons set out with respect to Ground (c), I find that there was no failure to take into account the second consideration in Ground (kk)(iv). 273 With respect to the first allegation that the Attorney-General failed to take into account the "principle" that the USA being "inexcusably dilatory" may establish the "necessary injustice and oppressiveness", that was not a matter the Attorney-General was bound to take into account. It was open to the Attorney-General to consider the delay of the USA in seeking Mr Matson's extradition under the general discretion in s 22(3)(f) of the Extradition Act, and as discussed with respect to Ground (b), such delay was taken into account. Ground (kk)(iv) has not been established. 274 Ground (kk)(v) alleges that the Attorney-General failed to take into account, "implied mandatory considerations derived from the scope, subject-matter and purpose of the Extradition Act". The "implied mandatory considerations" are alleged to be Australia's non-refoulement obligations under the ICCPR and the CAT. As discussed with respect to Ground (nn)(vi), the Departmental Advice addressed Australia's non-refoulement obligations. Ground (kk)(v) has not been established. 275 Ground (kk)(vi) alleges that the Attorney-General failed to take into account, "that the Applicant had already served over three years on remand in a maximum security prison in Australia while contesting extradition…". 276 Under s 22(3) of the Extradition Act, an eligible person is only to be surrendered if the requirements in paras (a)-(f) are fulfilled. There is no requirement in paras (a)-(f) of s 22(3) that the Attorney-General take into account the time a person has spent in custody awaiting surrender. The Attorney-General was not bound to take into account the time that Mr Matson had already spent in custody. Even if the Attorney-General was bound to consider it, I find that the failure to take it into account could not have materially affected the decision, given that the bulk of that time was the result of Mr Matson having unsuccessfully exercised his right to challenge the extradition process. Ground (kk)(vi) has not been established. 277 Ground (rr) alleges that the Attorney-General violated his rights by failing to consider, "the lack of good faith (or alternatively the lack of bona fides) of both the US Government and the Commonwealth Attorney General's Department…particularly evidence of "bad faith", "wilful neglect of duty", "collusion", "abuse of process", "abuse of power" and "executive lawlessness"…". I have proceeded on the basis that each of these expressions is intended to allege bad faith on the part of Departmental officers and the USA authorities. 278 The bad faith of the Department and the USA authorities is particularised in paragraphs (i)-(x) of Ground (rr). Mr Matson has not proved the factual premises he alleges. His allegations are, at best, merely speculative. 279 Mr Matson has not proved the allegation in (i) that the USA deliberately delayed in duly notifying him of the charges and requesting his extradition. He has not proved the allegation in (ii) that the Department deliberately delayed in notifying him of the charges. He has not proved the allegation in (iii) that the USA provided knowingly false, incomplete, misleading and incorrect information in relation to Mr Matson's and his father's whereabouts. He has not proved the allegation in (iv) that the Department knew that the USA had provided knowingly false, incomplete, misleading and incorrect information which was then provided to the Attorney-General. He has not proved the allegations in (v) and (vi) that the USA deliberately attempted to cover-up the true nature of the delay and the true extent of the lengthy involvement of the Australian Federal Police, the FBI, Interpol, the United States Department of Justice and the Department, and that the Department deliberately attempted to cover-up the true nature of that delay and involvement. He has not proved the allegation in (vii) that knowingly false, incorrect, misleading and contradictory information was provided to a US District Court in relation to the whereabouts of Mr Matson and his father. Mr Matson has not proved the allegation in (viii) that two Departmental officers had an apparent conflict of interest in their significant involvement in the extradition process. Mr Matson has not proved the allegation in (ix) that there were multiple "misleading official communications" provided to him by the Department in relation to his FOI Requests which misled him and denied him the opportunity to employ such documents in his representations to the Attorney-General. An examination of the 20 "misleading official communications" demonstrates that Mr Matson's assertions of deliberately misleading conduct are, at best, speculative. Mr Matson has not proved the allegation in (x) that a "litigation strategy" had been put in place to obstruct his access to relevant documents. 280 Mr Matson has not proved any of his allegations in Ground (rr), and as such they cannot be mandatory considerations that the Attorney-General failed to take into account. Ground (rr) has not been established. 281 Ground (vv) alleges that the Attorney-General failed to consider that, "the United States Government has a Constitutional duty to make a diligent and good faith effort to locate defendants and bring them to trial", which was not observed, and that, "the US Department of Justice had knowledge of both the Applicant and his father's whereabouts and had tangible leads to their locations at any time via the Australian Federal Police". 282 There is no requirement in the Extradition Act that such considerations be taken into account when determining whether to surrender an eligible person under s 22(2). In any event, the Departmental Advice specifically considered Mr Matson's allegations of delay, including that the USA and Australian authorities had deliberately delayed in order to hamper his defence. Ground (vv) has not been established.

Taking into account irrelevant considerations 283 Mr Matson alleges in Ground (ii) that the Attorney-General adopted a wrong legal test and took into account certain irrelevant considerations, "including knowingly incorrect facts and other knowingly false, misleading, inadequate and incorrect legal advice outlined in the department's 'Ministerial brief'". 284 The principles discussed by Mason J in Peko-Wallsend in relation to the ground of failure to take into account relevant considerations are also generally applicable with respect to the ground of taking into account irrelevant considerations. With respect to the latter, Mason J stated in Peko-Wallsend at 40: In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard… 285 The Departmental Advice was not a consideration which, as a matter of construction of the statute, the Attorney-General was bound to not take into account. In any event, there has been no specification as to which facts or advice in the Departmental Advice are "knowingly incorrect", or "knowingly false, misleading, inadequate and incorrect". Ground (ii) has not been established.

Due Process 286 Mr Matson alleges in Ground (ll) that the Attorney-General failed to accord him "due process" by, "not considering the arguments, evidence and contentions raised in the Applicant's material and submissions he filed for the purposes of his judicial review applications QUD 89, 569 and 844 of 2016 and QUD 51 of 2017". This failure to accord due process is alleged to have denied Mr Matson a "meaningful opportunity to advance his case" and to "put information, evidence and make arguments to the Minister". 287 Ground (ll) makes reference to Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, which relates to denial of procedural fairness. It seems that this ground is essentially making the same argument as was alleged in Ground (i), namely that there was a denial of procedural fairness on the basis that some of Mr Matson's material in the matters listed above were not put before the Attorney-General. 288 For the reasons given with respect to Ground (i), I do not consider that Mr Matson was denied any opportunity to advance his case. The submissions prepared by Mr Morris QC in QUD 569 of 2016, QUD 844 of 2016 and QUD 51 of 2017 and the affidavit prepared by Mr Matson in QUD 89 of 2016 were included in the Departmental Submission provided to the Attorney-General. To the extent that some material filed by Mr Matson was not placed before the Attorney-General, Mr Matson has not demonstrated that such material could have influenced the Attorney-General to decide his case differently. Ground (ll) has not been established.

Bad Faith 289 In Grounds (k), (l), (m), (n) and (rr), Mr Matson alleges that the Attorney-General's decision was "tainted by" the bad faith of certain officers of the Department. The Attorney-General submits that these allegations are "vexatious and disclose no reasonable cause of action", and so should be disallowed. 290 The principles applicable to an allegation of exercise of a power in bad faith were summarised in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [42]-[48]: (1) An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. (2) An allegation of bad faith is not to be lightly made and must be clearly alleged and proved. (3) There are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. (4) The presence or absence of honesty will often be crucial. (5) The circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. (6) Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. (7) Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness. (8) The court must make a decision as to whether or not bad faith is shown by inference from what the decision-maker has done or failed to do and from the extent to which the reasons disclose how the decision-maker approached its task. (9) It is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power. 291 While Grounds (k), (l), (m), (n) and (rr) allege bad faith on the part of Departmental officers, the ground that a power has been exercised in bad faith requires, "personal fault on the part of the decision-maker": see also SBAP v Refugee Review Tribunal [2002] FCA 590 at [49]; NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 at [25]; SBAU v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 70 ALD 72; [2002] FCA 1076 at [27]. In this case, the decision-maker was the Attorney-General, and not any Departmental officers. These grounds do not allege bad faith on the part of the Attorney-General. Therefore, these grounds are not established insofar as they assert that the decision was made in bad faith. 292 An alternative way of viewing Grounds (k), (l), (m), (n) and (rr) is that Mr Matson may be alleging that various Departmental officers perpetrated a fraud on the Attorney-General that vitiates the Surrender Decision. 293 In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, the High Court considered an allegation that the decision of a migration tribunal was affected by a fraud on a tribunal committed by the appellants' migration advisor. The migration advisor had fraudulently dissuaded them from attending the tribunal hearing, and the tribunal then made a decision adverse to them in their absence. The fraud was clearly established. The High Court held that, while the tribunal had undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud, it was disabled from the due discharge of its imperative statutory functions, including the requirement to provide natural justice. 294 Mr Matson alleges in a number of affidavits that the Department's handling of his FOI Requests was a "systematic and deliberate methodology" that amounted to "illegal conduct, breach of their sworn duty, an abuse of power, executive lawlessness and a breach of the rule of law". The difficulty for Mr Matson in this case is that his allegations and the evidence in support of these allegations go nowhere near establishing fraudulent conduct on the part of the Departmental officers. 295 The allegations of bad faith in Grounds (k), (l), (m), (n) and (rr) are without merit. Mr Matson should not be permitted to rely upon these grounds.

Improper Purpose 296 It is also alleged in Grounds (k), (l), (m), (n), (bb) and (dd) that the Surrender Decision was tainted by "improper purpose". The Attorney-General submits that these allegations are vexatious and disclose no reasonable cause of action. 297 A statutory power must be exercised for a purpose for which the power was granted, and not for an ulterior purpose: Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87 at 105-106; Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 at 468-469. It is enough to invalidate a decision if an improper purpose was a substantial purpose of the power: Thompson at 106; Samrein at 468. 298 Section 3 of the Extradition Act sets out the principle objects of the Act, which include enabling Australia to carry out its obligations under extradition treaties. 299 It is unclear for what improper purpose Mr Matson alleges the decision was made. The evidence does not demonstrate that the Surrender Decision was made otherwise than for the purpose of facilitating the request made by the USA for the extradition of Mr Matson in relation to the qualifying extradition offences. I therefore reject the allegation that the Attorney-General acted for an improper purpose. 300 The allegations of improper purpose in Grounds (k), (l), (m), (n), (bb) and (dd) are without merit. Mr Matson should not be permitted to rely upon these grounds.

Actual Bias 301 Mr Matson also makes a number of serious allegations in Grounds (k), (l), (m) and (n) of actual bias relating to the conduct of Departmental officers. The Attorney-General submits that these allegations are vexatious and disclose no reasonable cause of action. 302 There must be "strong grounds" established for a claim of actual bias: The Queen v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116. 303 There is no evidence of actual bias on the part of any Departmental officers or the Attorney-General. The allegations of actual bias in Grounds (k), (l), (m) and (n) are without merit. Mr Matson should not be permitted to rely upon these grounds.

Apprehended Bias 304 Mr Matson also makes a number of allegations in Grounds (k), (l), (m) and (n) of apprehended bias relating to the conduct of certain Departmental officers. The Attorney-General submits that these allegations are vexatious and disclose no reasonable cause of action. 305 The test for apprehended bias is whether, "a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question the [decision-maker] is required to decide": Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7]-[10]; Johnson v Johnson (2000) 201 CLR 488 at [10]-[14]; Vakauta v Kelly (1989) 167 CLR 568 at 575. 306 It is prejudgment, not predisposition, which engages the apprehended bias rule: Dennis v Commonwealth Bank of Australia (2019) 272 FCR 343 at [32]. As Gleeson CJ and Gummow J said in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71]: … Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias. (Citations omitted.) 307 It must therefore be shown that a fictional observer might reasonably apprehend or suspect that the decision-maker might not bring an impartial mind to the making of the relevant decision. 308 In this case, the decision-maker was the Attorney-General, not Departmental officers. However, the material placed before the Attorney-General consisted principally of the Departmental Advice. If that Departmental Advice was unbalanced and unfair, the adoption of it by the Attorney-General might give rise to an apprehension of bias. 309 Mr Matson's allegations of apprehended bias include the "undisclosed conflict of interest" arising from the involvement of two Departmental officers, David Reed and Stephen Bouwhuis, in the handling of Mr Matson's domestic prosecution and extradition request. However, there is no evidence that there was a conflict of interest, or that it might have impacted upon the preparation of the Departmental Advice or the making of the Surrender Decision in any way. 310 The Departmental Advice provided to the Attorney-General was, in my opinion, balanced in its approach. I cannot see any basis for the allegation that a fair-minded lay observer might reasonably apprehend that the Attorney-General might not have brought an impartial and unprejudiced mind to the making of the Surrender Decision. 311 The allegations of apprehended bias in Grounds (k), (l), (m) and (n) are without merit. Mr Matson should not be permitted to rely upon these grounds.

Improper exercise of power 312 It is alleged in Ground (pp) that the Surrender Decision was an improper exercise of power on the basis that the Attorney-General failed to observe implied limitations of its exercise imposed by the Constitution, international customary law and the common law, including the implication that the power be exercised in good faith and with respect for the dignity of Mr Matson and First Nations people. The Attorney-General submits that these allegations are vexatious and disclose no reasonable cause of action. 313 The reference to "improper exercise of power" is to something which, for some reason known to the law, is not a proper exercise of power: Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186 at 189. 314 This ground seems to argue that there was an improper exercise of the power under s 22(2) of the Extradition Act on the basis that the Attorney-General did not observe "implied limitations of its exercise". The only implied limitations particularised are that the power must be exercised, "in good faith and with respect for the dignity of the Applicant and First Nations people". 315 As I have held, there is no evidence that the Attorney-General did not make the Surrender Decision in good faith. The exercise of the power is not conditioned upon the Attorney-General demonstrating respect for the dignity of Mr Matson and Indigenous people, and, in any event, there is no evidence that he failed to do so. 316 Therefore the allegation of improper exercise of power in Ground (pp) has not been established.

Abuse of Process 317 Ground (bb) alleges that the exercise of the Attorney-General's discretion under s 22 of the Extradition Act was an abuse of process on the basis that the delay in seeking Mr Matson's arrest and formally requesting his extradition was unjustified and attributable to the USA, and there was a lack of candour and obfuscation in explaining the delay. The Attorney-General submits that this allegation is vexatious and discloses no reasonable cause of action. 318 There is some ambiguity in the terms of the ground, but I understand it to essentially allege that the Attorney-General failed to consider an abuse of process by the USA authorities. The Departmental Advice discussed Mr Matson's allegations against the USA authorities under the heading "Abuse of process". 319 In its reasons for judgment, the Full Court in Matson v United States of America concluded that: 90 There is also no basis for Mr Matson's contention that there was a lack of candour, or obfuscation, on the part of the United States in explaining the delay. As has been said, while it might perhaps be accepted that Mr Trezevant's affidavit did not provide much detail in relation to the reasons or explanation for the delay, there was no relevant lack of candour or obfuscation. 91 Mr Matson's submission that there was a "compelling case" of abuse of process or fraud on the extradition power must also be rejected. The basis for that submission was the delay and obfuscation. Given the delay was not egregious and not entirely unexplained, and there was no lack of candour or obfuscation, it must follow that there was no abuse of process. 320 The Departmental Advice specifically drew the Attorney-General's attention to the second of these paragraphs, as well as to Mr Matson's allegations that the USA authorities had deliberately delayed and made fraudulent statements. The Attorney-General considered the allegation of abuse of process and evidently rejected it. Ground (bb) has not been established.

Failure to make enquiries 321 Ground (gg) alleges that the Surrender Decision was affected by jurisdictional error on the basis that the Attorney-General failed to make an obvious enquiry about a critical fact, namely the sentencing regime in the USA. 322 In his written submissions, Mr Matson sets out ten "critical issues" that it is alleged the Attorney-General failed to make enquiries about: (1) the terminal health condition of Mr Matson's father; (2) the significance of Mr Matson's Indigenous heritage and the "special connection" of First Nations People to Australia; (3) the likely permanent separation of Mr Matson from his family, community, culture and country; (4) the arguments referred to by Mr Matson in his judicial review proceeding regarding violation of his constitutional implied rights and fundamental human rights; (5) the over three years already served by Mr Matson in maximum security prison without being given the opportunity of bail; (6) the failure of the USA to provide an assurance that Mr Matson's time already served would be deducted from any sentence imposed; (7) the potential 305 year prison sentence in the USA and the fact that there is no "parole" for federal charges in the USA; (8) the inordinate use of solitary confinement in the USA prison system; (9) the USA's delay; (10) the issue of "another indigenous death in custody" in relation to Mr Matson and his father. 323 However, there is no general obligation imposed by s 22 of the Extradition Act to undertake any investigation or enquiry concerning submissions made by a person whose extradition has been requested: cf Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [30]. Ground (gg) has not been established.

Failure to ask the right question 324 Ground (ff) alleges that the Surrender Decision was affected by jurisdictional error on the basis that the Attorney-General, "did not direct himself or ask himself the right question in relation to the legal consequences and the likely hardship to be caused to the Applicant and his family by surrendering the Applicant to the US, particularly in consideration of the Applicant's indigenous heritage and his "special connection" to Australia". 325 In Craig v South Australia (1995) 184 CLR 163 at 179, the High Court held that if an administrative tribunal falls into an error of law which causes it to ask itself a wrong question, and the tribunal's exercise of power is thereby affected, the tribunal exceeds its authority or powers. 326 However, Mr Matson has not identified the question which should correctly have been asked. The ground seems to be merely another way of asserting that the Attorney-General failed to consider the hardship that would be caused by Mr Matson's extradition due to his Indigenous heritage and his asserted "special connection" to Australia. 327 It is clear that the Attorney-General did consider the "consequences and hardship" Mr Matson would face if surrendered to the USA. I have addressed this issue in Ground (o). Ground (ff) has not been established.

Other grounds 328 There are a number of other grounds that make various allegations of jurisdictional error. 329 Ground (z) alleges that the Attorney-General misconstrued the meaning of the word "proper" in the context of Art V of the USA Extradition Treaty, such that the Surrender Decision was affected by jurisdictional error. The alleged misconstruction has not been explained. Ground (z) has not been established. 330 Ground (jj) alleges that the Surrender Decision was affected by jurisdictional error on the basis that the Attorney-General, "erred when assessing the consequences and likely hardship faced by the Applicant". As has been discussed, the Attorney-General considered the "consequences and hardship" Mr Matson would face if surrendered to the USA. There is no particularisation as to how the Attorney-General "erred" in his assessment of these matters. In the absence of particulars, Ground (jj) has not been established. 331 Ground (qq) alleges that the Surrender Decision was affected by jurisdictional error on the basis that the Attorney-General, "failed to observe the "Public Interest" in the fair administration of justice, Government integrity, accountability and transparency, particularly when an indigenous Australian citizen is facing the largest potential prison sentence ever faced by an Australian citizen in Australian legal history, some 305 years". 332 I am not satisfied that, as a matter of statutory construction, the Attorney-General was obliged to take any of these matters into account, except perhaps Mr Matson's Indigenous heritage under s 7(c) of the Extradition Act and Article V of the USA Extradition Treaty. As a matter of fact, the Attorney-General did take these matters into account by accepting that the request had been made for the legitimate purposes of the administration of justice and that the USA authorities had not acted in bad faith, and by considering Mr Matson's Indigenous heritage and the maximum sentence available for each qualifying offence. Ground (qq) is not established. 333 Ground (ss) alleges that the Surrender Decision was affected by jurisdictional error on the basis that the Attorney-General, "failed to observe the Commonwealth of Australia's international obligations as a United Nations member and under international treaties Australia has ratified, and the "legitimate influence" they have on Australia's common law and on Australia's modern interpretation of the Constitution". 334 There is no express requirement under s 22 of the Extradition Act to consider Australia's "international obligations". However, a number of provisions in the Extradition Act are designed to implement Australia's international obligations. 335 Section 22(3)(b) of the Extradition Act implements Australia's non-refoulement obligations with respect to torture under the CAT. As discussed in relation to Ground (nn)(vi), the Departmental Advice which formed the Attorney-General's reasons specifically addressed Australia's obligations under the CAT. 336 Section 22(3)(f) provides the Attorney-General with a discretion as to whether a person should be surrendered. A number of international obligations were raised by Mr Matson and addressed in the Departmental Advice in respect of the discretion. These included Arts 2, 7, 9, 14 and 26 of the ICCPR. As discussed in relation to Ground (nn)(iv), the Departmental Advice addressed the rights protected under the ICCPR, and concluded that they would not be breached by the surrender of Mr Matson. Therefore, the Attorney-General considered Australia's international obligations. While Mr Matson raised a number of other international instruments in Ground (ss), the Attorney-General was otherwise not required under s 22 of the Extradition Act to consider them. Ground (ss) has not been established. 337 Ground (tt) alleges that the Surrender Decision was affected by jurisdictional error on the basis that it, "amounted to "impermissible discrimination", failing to treat like persons in a like manner, and also failing to give a proper account to genuine differences in the circumstances of the US Government's extradition request, in comparison to every other previous extradition request from the United States of America". The ground refers to, " the Indigenous heritage of the Applicant, which violated the Applicant's constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment protected under the Constitution". 338 The Attorney-General considered Mr Matson's Indigenous heritage, his connection with Australia, his claims that he may be prejudiced, punished, detained or restricted in his liberty because of his Indigenous heritage and his claims concerning the ICCPR. To the extent that the ground asserts that the Attorney-General's decision itself discriminated against him on the basis of his race, that is not demonstrated on the evidence. Ground (tt) has not been established.

Grounds in support of paragraph 10 339 Paragraph 10 of the Draft Amended Originating Application seeks, "An order in the nature of a declaration that Part II of the Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations are invalid under the Constitution". A number of particulars in support of that relief are set out. 340 Mr Matson filed and served a notice under s 78B of the Judiciary Act asserting that the proceeding involves matters arising under the Constitution. These constitutional issues are alleged in Grounds (a)-(l) of the particulars in support of paragraph 10, as well as in Grounds (oo), (uu) and (tt) of the particulars in support of paragraphs 1 to 9 of the relief sought. 341 The Attorney-General submits that no constitutional issue genuinely arises in this case, and that Mr Matson's various constitutional grounds are plainly untenable. 342 Grounds (oo) and (tt) allege that the Surrender Decision infringed implied constitutional rights. These include implied rights to, "stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment". As submitted by the Attorney-General, there is no authority establishing an implied constitutional right to "stay, live and die in Australia", nor a constitutional right to "due process, equality before the law, fairness or protection from cruel and unusual punishment". Therefore, the Surrender Decision has not infringed any such implied constitutional rights. Grounds (oo) and (tt) have not been established. 343 Ground (uu) alleges that the Surrender Decision contravened s 64 of the Constitution on the basis that the Attorney-General, "gave the stamp of approval to 'unconscionable government conduct' and 'executive lawlessness'". Section 64, together with s 62, provides for the executive power of the Commonwealth: see Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 558. It has not been explained how the Surrender Decision contravened this provision. Ground (uu) has not been established. 344 Grounds (a)-(l) of the particulars in support of paragraph 10 allege that the Extradition Act and the Extradition Regulations are invalid under the Constitution. These arguments seem to allege that the Commonwealth did not have power to enact the Extradition Act and the Extradition Regulations. 345 In Vasiljkovic v The Commonwealth of Australia (2006) 227 CLR 614, a majority of the High Court held that Pt II of the Extradition Act (which includes s 22) and regulations with respect to an extradition treaty between Australia and Croatia were supported by the external affairs power in s 51(xxix) of the Constitution and did not offend the separation of powers inherent in the structure of the Constitution. Chief Justice Gleeson observed at [36]-[37]: 36 The Regulations, and Pt II of the Act, are supported by s 51(xxix) of the Constitution: the external affairs power. As French J said in Hempel v Attorney-General (Cth): "[T]he subject matter of extradition is directly concerned with international relations … The nature of extradition is such that a law with respect to it is likely to be a law with respect to external affairs whether or not there is in existence any supporting treaty". The external affairs power is not confined to the implementation of treaties. Making arrangements, by treaty or otherwise, for the extradition of alleged fugitive offenders, and giving effect to those arrangements, are matters that directly concern Australia's relations with other countries and are part of that aspect of its external affairs. 37 The conferral of power in s 51(xxix) is subject to the Constitution. Is the deprivation of liberty necessarily involved in the extradition process, or the particular scheme of Pt II of the Act, contrary to the Constitution? It may be accepted that, subject to qualifications, "the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts". However, as Gaudron J pointed out in Kruger v The Commonwealth, there are well-known exceptions to that general proposition and, further, those exceptions do not fall within precise and confined categories. They include, for example, arrest and custody pending trial, and detention by reason of mental illness or infectious disease. They also include the process of extradition. (See also [87], [222]) 346 Accordingly, the High Court has held that the Extradition Act, and by extension the Extradition Regulations, are supported by the external affairs power and do not infringe the Constitution. Therefore, Grounds (a)-(l) of the particulars in support of paragraph 10 relating to their inconsistency with international customary law, common law rights and the Magna Carta cannot succeed. 347 In Ground (k), Mr Matson alleges that the Extradition Act and the Extradition Regulations, "infringe constitutional implied rights of those persons subject to extradition proceedings, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years". Mr Matson indicated at the hearing on 18 November 2019 that he relied upon arguments raised in Love and Thoms (which was concerned with the "aliens" power). The judgment in Love and Thoms was delivered after I had reserved my judgment, and I indicated to Mr Matson at the hearing on 18 November 2019 that he could make submissions on the relevance of that judgment once handed down. 348 The written submissions prepared by Mr Burnside QC and Mr Freeman for the purpose of the interlocutory hearing on 25 June 2020 stated with respect to Love and Thoms, "The Applicant concedes that his argument that the constitutional validity of the Extradition Act 1988 (Cth), as it applies to him is without foundation". Mr Matson later purported to withdraw this concession in written submissions filed for the purpose of the interlocutory hearing on 28 August 2020. However, Mr Matson has not otherwise made submissions regarding any implied constitutional right for Indigenous people to not be removed from Australia that is said to arise from the decision in Love and Thoms. I therefore consider this argument to be abandoned, and will not consider it.

Conclusion 349 It will be recalled that Mr Matson requires leave to file the Draft Amended Originating Application, since he sought to file it outside the time provided in the orders made on 21 October 2019. I indicated that I would consider the merits of the grounds and would determine whether leave was granted. 350 The grounds relying on bad faith, actual bias, apprehended bias and improper purpose make serious allegations against Departmental officers that are unsupported by evidence. Mr Matson should not be permitted to rely upon those grounds. 351 Although I have found that none of the grounds have been established, I consider that it is appropriate to grant Mr Matson leave to file an amended application in the form of the Draft Amended Originating Application, subject to the deletion of Grounds (k), (l), (m), (n), (bb), (dd) and (rr). However, as I have indicated, the grounds of the application cannot succeed.

Consideration of the 25 June Adjournment Application 352 I have noted that after the substantive hearing had been completed and judgment had been reserved, Mr Matson filed the 11 March Discovery Application, which sought orders for the listing of the matter for a further final substantive hearing, the production of a number of documents, discovery and bail. The application for bail was not ultimately pursued. 353 The hearing of the 11 March Discovery Application was conducted on 25 June 2020. Mr Burnside QC, appearing with Mr Freeman for Mr Matson, applied for an adjournment. The basis for the proposed adjournment was that the discovery application sought unredacted versions of the 4 July FOI Documents and Mr Matson had applied to the AAT to determine whether those documents should be provided in unredacted form under the FOI process. Mr Burnside QC submitted that the discovery application should be adjourned until that question was determined by the AAT. It was submitted that if the hearing proceeded, there would be two potentially different decisions in different jurisdictions on exactly the same question. 354 The application for adjournment was opposed by the Attorney-General. It was argued that there should be no further delay of the proceedings, given that they had been on foot for a lengthy time (approximately 16 months). It was also argued that the AAT and the Court were not dealing with the same question, as the Court was not concerned with the redaction of the 4 July FOI Documents. 355 I refused the application for an adjournment and indicated that I would provide my reasons later. These are my reasons. 356 I was not satisfied that Mr Matson had demonstrated that there would be any significant advantage in pursuing the 4 July FOI Documents in unredacted form before the AAT, over continuing with the application for discovery he had made to this Court. The hearing of the interlocutory application would be delayed for an indefinite time until the application before the AAT was heard and decided. I considered that it would not be in the interests of justice to allow an adjournment of the interlocutory application. Accordingly, the application for an adjournment was refused.

Consideration of the 11 March Discovery Application 357 Following the refusal of the application for adjournment of the hearing on 25 June 2020, Mr Burnside QC made submissions in support of the 11 March Discovery Application. He relied on written submissions, as well as Mr Matson's affidavits sworn on 21 October, 4 November, 19 December and 20 December 2019, and 2 January, 29 January, 5 February, 19 February, 3 March, 23 March, 1 April, 22 April, 7 May, 22 May and 9 June 2020. 358 Mr Matson had been provided with the Withheld Documents, consisting of over 70 new documents, many of which were heavily redacted, on 4 July 2019. These documents had not been disclosed to him prior to the making of the Surrender Decision. The application for discovery essentially sought unredacted copies of the 4 July FOI Documents. 359 Mr Burnside QC addressed the forensic purpose of the discovery that was being sought. He submitted that, "procedural fairness demands that the decision maker consider the material in the Withheld Documents and remake the decision, giving the Applicant an opportunity to comment should any aspect of that information be credible, relevant and significant". That submission seemed to be related to a further submission that s 22 of the Extradition Act required the Attorney-General to obtain all documents from all government departments that were relevant to the decision; and if there were relevant documents which were not placed before the Attorney-General, there would be a breach of the principles of natural justice. 360 Mr Burnside QC also submitted that without seeing the full content of the redacted documents, it could not be determined whether, firstly, those documents were before the Attorney-General when the Surrender Decision was made; and secondly, whether there was anything in those documents that was relevant to the making of the Surrender Decision about which Mr Matson could have made submissions. It was submitted that the documents may reveal material in the redacted documents that was adverse to his interests and credible, relevant and significant to the decision, and which should have been provided to Mr Matson to comment upon. Any such material would then be used by Mr Matson to make an argument in the substantive application about denial of procedural fairness. Mr Burnside QC submitted that Mr Matson should have received the unredacted 4 July FOI Documents prior to the making of the Surrender Decision on 1 February 2019, and that the failure of the Department to provide him with those documents was a denial of procedural fairness. 361 When asked how discovery of the unredacted 4 July FOI Documents would affect the application for judicial review, Mr Burnside QC responded: We don't know until we can see what they contain, but some of them are so redacted that it is basically impossible to know what bearing, if any, they would have had on the Attorney-General's decision. 362 The Attorney-General submitted, inter alia, that the application for discovery, having been made after judgment was reserved, amounted to an application to reopen the proceedings. It was submitted that there had been no attempt by Mr Matson or his counsel to engage with the law regarding reopening proceedings. It was submitted that the interlocutory application was, "nothing more than an attempt to re-agitate matters that were previously raised". 363 There was a difference between the parties as to whether Mr Matson was seeking to "reopen" the case by making an application for discovery after judgment had been reserved. For Mr Matson, it was submitted that the principles concerning reopening did not apply, and would only apply if Mr Matson sought to lead further evidence after discovery was completed. The Attorney-General submitted that the application for discovery was itself an application to reopen the case. Neither party referred to any authority specifically dealing with that issue. 364 As to the principles relevant to an application to reopen, the Attorney-General relied upon Inspector General in Bankruptcy v Bradshaw [2006] FCA 22, where Kenny J held at [24]: The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 ("UTA") at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 ("Silver Fox") at [22] and [25]. 365 In Bradshaw, the applicants sought to present further evidence after their case had been closed. That was also the case in each of the authorities cited by Kenny J. Accordingly, the views expressed by Kenny J about when a court may grant leave to "reopen" were made in that context, not in the context of an application for discovery made after judgment was reserved, which may later lead to an application to reopen the evidence. The submission made on behalf of Mr Matson that the application for discovery was not an application to "reopen" because he was not seeking, at that stage, to present further evidence, appears to be correct. However, some of the principles applied in an application for leave to reopen appear relevant to an application for discovery made after judgment has been reserved, including "the principle of finality of litigation" referred to by Kenny J at [25]. 366 Rule 20.13(1) of the Federal Court Rules 2011 (Cth) provides that, "A party may apply to the Court for an order that another party to the proceeding give discovery". 367 Rule 20.14 provides: (1) If the Court orders a party to give standard discovery, the party must give discovery of documents: (a) that are directly relevant to the issues raised by the pleadings or in the affidavits; and (b) of which, after a reasonable search, the party is aware; and (c) that are, or have been, in the party's control. (2) For paragraph (1)(a), the documents must meet at least one of the following criteria: (a) the documents are those on which the party intends to rely; (b) the documents adversely affect the party's own case; (c) the documents support another party's case; (d) the documents adversely affect another party's case. 368 Rule 20.15 allows an application for non-standard discovery to be made. 369 Rule 20.11 provides that, "A party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible". This rule reflects s 37M(1) of the Federal Court of Australia Act 1976 (Cth) which provides that, "The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes…according to law; and…as quickly, inexpensively and efficiently as possible". 370 In United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116, Tamberlin J observed at [3]: On a discovery application, the Court has a broad discretion and will balance the costs, time and possible oppression to the producing party against the importance and likely benefits which arise to the requesting party from production of the documents: Australian Broadcasting Commission v Parish (1981) 41 FLR 292 at 295. The Court will ensure that in all the circumstances, the litigation is conducted fairly in the interests of both parties, and care must be taken to make sure that there is no excessive or unnecessary discovery: see Index Group of Companies Pty Ltd v Nolan [2002] FCA 608. 371 Mr Matson's discovery application was expressed to be for non-standard discovery. It was not confined to seeking discovery of documents that are directly relevant to the issues. Mr Burnside QC did not explain why discovery should extend beyond directly relevant documents. 372 It will not suffice to rely on mere suspicion that discovery may produce documents directly relevant to the issues raised in the proceeding. In Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327, the Full Court considered an order made by the primary judge directing a Minister to answer interrogatories in respect of an allegation that the Minister's decision was made for an ulterior purpose. It is apparent that the Full Court's observations apply equally to an application for discovery of documents. The Full Court held: [32] It is clear from Bannerman that a mere allegation, in the absence of something more, would not suffice to require discovery and it may be said here interrogatories…What that something more is will depend on the particular circumstances of the case. In some cases (the present is not one) there may be evidence upon which it is open to conclude that the matter into which enquiry is sought may be made out so that discovery or interrogatories may be appropriate. In other cases it may be possible by reference to known facts to draw inferences which then found a suspicion. But mere suspicion not "grounded" on evidence or inference will not suffice. [33] It may be remarked here that cases which have concerned discovery in judicial review have, at least in part, been influenced to adopt a liberal view on discovery by the fact that the rules of the Court now permit discovery before action (cf Order 15A, rule 6). That rule requires, however, that the person seeking discovery before action show that there is reasonable cause to believe that the applicant has, or may have the right to obtain relief. That limitation reflects the policy that while discovery may be ordered even before proceedings have commenced the power to do so will only be enlivened where that is something upon which the Court can base its conclusion that the applicant may have a right to relief… … [35] In our opinion the present case is one where more than a mere allegation would be required before interrogatories of the kind here sought to be administered could properly be ordered. The additional matter may rest in evidence; it may rest in inferences that might be drawn from the evidence, or inferences that may be raised from other material, including matters that have been pleaded. But there will be a need here at least to ground an inference that an extraneous matter was taken into account and more significantly, that the Minister had an ulterior purpose, before it would be appropriate to order interrogatories to be administered. (See also Jilani v Wilhelm (2005) 148 FCR 255 at [108]-[113].) 373 It may be accepted, as Mr Burnside QC submitted, that the redacted documents are about Mr Matson. However, the issue concerned the potential relevance of the documents to the issues raised in the Draft Amended Originating Application. 374 As I have discussed, Mr Matson makes numerous allegations of bad faith, improper purpose, actual bias, and perhaps fraud, on the part of officials of the Department and of the USA. The allegations against Departmental officers include making misleading statements, wrongfully withholding documents sought under FOI applications and providing knowingly false information to the Attorney-General. The allegations against USA officials include deliberately delaying in notifying Mr Matson of the charges and requesting his extradition, providing knowingly false information to the Department and to a USA court, and "covering up" the true nature of the delay. These serious allegations have been supported only by Mr Matson's speculations based on the fact that documents were redacted in the FOI process and upon asserted inconsistencies in representations made about the numbers and types of documents held by the Department. 375 Mr Burnside QC took up the allegation that USA officials knew Mr Matson's whereabouts in Australia but had deliberately delayed, submitting: Now, that comes down to something slightly more focused, which is the main problem in the application is the suggestion that the Americans delayed for 10 or 15 years before making the extradition request, and it is suggested that they did not know the address of Mr Matson during the decade or so of delay, but what we don't know is whether the wholly redacted or substantially redacted material includes anything that says that the Americans did not know how to find Mr Matson. 376 However, Mr Burnside QC did not point to evidence that would take the allegations of bad faith, improper purpose, actual bias, and perhaps fraud, outside the realm of mere allegations and speculation. This is a case, like Wong, where there is insufficient evidence to ground an inference that officers may have engaged in such conduct. 377 Mr Burnside QC submitted that without having unredacted copies of the documents sought by Mr Matson, it could not be determined whether those documents were before the Attorney-General. However, the documents that were before the Attorney-General were clearly identified in the Departmental Submission, and those documents have been disclosed to Mr Matson. The submission cannot be accepted. 378 Mr Burnside QC submitted that the unredacted documents may reveal adverse and credible, relevant and significant material, and may demonstrate a denial of procedural fairness. However, as any such documents were not before the Attorney-General, they could not have affected his decision. As I have discussed, the principles from VEAL are not applicable to these circumstances. Mr Burnside QC was unable to identify any authority which supported his submission. 379 Mr Burnside QC was also unable to identify any authority which supported the proposition that the Attorney-General was required to obtain all relevant documents from all government departments in order to make a valid decision. Nor was Mr Burnside QC able to identify any authority which supported the proposition that the decision was vitiated by failure of the Department to provide the Attorney-General with any material that may have been beneficial to Mr Matson. While reference was made to Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3], that case is not authority for the matters contended for. 380 It must also be borne in mind that Mr Matson did not ask that either the FOI process be completed prior to the making of the Surrender Decision or that certain categories of documents be placed before the Attorney-General (apart from those identified in Mr Morris QC's letter of 7 June 2018). 381 Mr Matson was unable to demonstrate anything more than a mere possibility that discovery might produce documents directly relevant to the issues raised in the Draft Amended Originating Application. That was acknowledged by Mr Burnside QC's submission that, "it is basically impossible to know what bearing, if any, they would have had on the Attorney-General's decision". 382 It was also relevant to take into account the very late stage at which the application for discovery was made. It was made after the hearing of the substantive proceeding and after judgment had been reserved. 383 Mr Matson provided no explanation for why the application had not been made earlier. Nor was any explanation apparent on the material. Mr Matson was represented by Mr Morris QC until the day of the substantive hearing on 18 November 2019. As Mr Matson was represented by counsel and solicitor in the 11 March Discovery Application, an explanation, if there was a reasonable one, could be expected to be forthcoming. It may also be noted that Mr Matson had demonstrated the knowledge and capacity to apply for the issue of subpoenas to various Departmental officers, although that was refused by a Judicial Registrar on 15 November 2019. Mr Matson did not challenge that decision. 384 I took into account the public interest in maintaining the finality of litigation: see Smith v NSW Bar Association (1992) 176 CLR 256 at 265; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303; Bradshaw at [25]. 385 For these reasons, I was not satisfied that making the order for discovery would facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. Accordingly, I refused the 11 March Discovery Application.

Consideration of the 6 July Discovery Application 386 Mr Matson filed an application on 6 July 2020, 11 days after the dismissal of the 11 March Discovery Application, seeking reopening of the proceeding and discovery. The 6 July Discovery Application was in substantially the same terms as the 11 March Discovery Application except that additional documents were sought. 387 I made orders on 3 July 2020 for the filing of written submissions as to whether the 6 July Discovery Application should be accepted for filing. However, on 30 July 2020, in view of subsequent applications that had been filed, I revoked the orders of 3 July 2020 and ordered that the applications be heard together on 28 August 2020. 388 Mr Matson made oral submissions at the hearing on 28 August 2020, and also relied upon written submissions and his affidavits sworn on 21 October and 4 November 2019, and 29 January, 19 February, 1 April, 22 April, 9 June, 20 June, 29 June, 10 July, 14 August, 17 August and 25 August 2020. 389 Mr Matson submits that the 6 July Discovery Application had been made because there was "inadvertent error" by his legal representatives during the interlocutory hearing of 25 June 2020 in relation to the 11 March Discovery Application. Mr Matson alleges that he had disagreed with the views of his legal representatives that it was unnecessary to have the Court exercise its discretion to reopen the case before an application for discovery could be made. Mr Matson submits that his legal representatives made an error in failing to make submissions as to why the proceeding should be reopened. 390 Mr Matson also submits that his legal representatives ought to have submitted that there was fresh evidence available that warranted reopening. That evidence is said to be a letter from the OAIC dated 3 April 2020 which stated in relation to two of Mr Matson's applications for review: The Department provided you with re-issued revised decisions and documents in both IC reviews on 6 November 2019. During the course of the IC reviews, the Department undertook to provide annotated schedules in these IC reviews for the purpose of confirming additional documents located during the IC review process. This task is relevant to the determination of whether the Department has undertaken all reasonable steps to locate documents that may fall within the scope of your FOI requests (s 24A of the FOI Act). On 25 March 2020, the Department advised the OAIC via email that the Department has reviewed its records and is unable to provide an accurate and complete annotated schedule of documents in both IC reviews. 391 It is difficult to understand precisely what these passages mean. However, they appear to suggest that the Department was unable to accurately and completely identify which documents it had located during the review process that were additional to those that had previously been disclosed to Mr Matson. 392 Mr Matson states that this means it is uncertain whether the bundle of documents sent to him on 6 November 2019 (which were the same as the 4 July FOI Documents) contained all the documents that the Department was required to provide. This is said to be contrary to the belief he communicated to the Court at the time of the hearing on 18 November 2019 that all the documents had been provided. 393 Mr Matson also submits that there was an error by his legal representatives at the hearing on 25 June 2020 because they failed to raise information which he had provided to them on the morning of the hearing. On the morning of the hearing, he had received a letter from the Australian Government Solicitor (AGS), acting for the Department, dated 23 June 2020 in relation to the FOI review proceedings before the AAT. The letter enclosed a bundle of documents lodged under s 37(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) and a draft order proposed to be made by the AAT which would effectively prevent the disclosure of certain "Confidential Information" to Mr Matson. The Confidential Information was said to consist of, "information provided to third parties to facilitate consultation processes, as well as information provided by the respondent to the OAIC". It was said that the Confidential Information is, or replicates, the material which the Department claimed was exempt from disclosure under the FOI process. Mr Matson states that these were additional documents that had not been disclosed to him. He states that he sent urgent messages to his legal representatives instructing them to raise the letter in support of the application for an adjournment and reopening of the proceeding. He states that his instructions were not complied with by Mr Burnside QC. 394 I have held that the 11 March Discovery Application did not require that an order for reopening of the evidence first be obtained. Therefore, Mr Matson's submissions concerning reopening are irrelevant to the 6 July Discovery Application. However, the 6 July Discovery Application, insofar as it seeks discovery of documents, cannot succeed for the reasons I have already given in relation to the 11 March Discovery Application. 395 Mr Matson also applies to reopen the evidence to adduce evidence of the letter from the OAIC dated 3 April 2020 and from the AGS dated 23 June 2020. 396 I have referred to the principles discussed by Kenny J in Bradshaw regarding when a court will allow further evidence to be given after a party's case has closed. Mr Matson relies, in particular, upon Granitgard Pty Ltd ACN 007 427 590 v Termicide Pest Control Pty Ltd ACN 093 837 337 (No 3) [2009] FCA 82, where Logan J at [6] quoted from Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478. In that case, Clarke JA (with whom Mahoney JA and Meagher JA agreed) held that there is no hard and fast rule which requires a court to reject an application to reopen the evidence where a decision not to call the evidence was a deliberate one, although that does not mean that it is not a very relevant consideration. His Honour said that where the decision was based on a misapprehension of the law or facts, the case is more appropriately to be considered as one in which the application has resulted from an error by counsel. 397 Mr Matson also relies on Australian Securities and Investments Commission v Rich (2006) 235 ALR 587; [2006] NSWSC 826 where Austin J at [18] summarised a number of factors relevant to the exercise of the discretion to allow the evidence to be reopened: The defendants submitted a list of matters that they claimed to be relevant to the exercise of the court's discretion to permit the plaintiff in a civil penalty proceeding to adduce further evidence after it has closed its case. I accept their list as a useful statement of relevant discretionary factors, applicable in such a case as the one before me. The list is as follows: (a) the nature of the proceeding; (b) whether the occasion for calling the further evidence ought reasonably to have been foreseen; (c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question; (d) the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case-in-chief; (e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case; (f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time; (g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs; (h) the public interest in the timely conclusion of litigation; and (i) what explanation is offered by the plaintiff for not having called the evidence-in-chief. 398 I accept that the nature of the proceeding, being one in which the liberty of Mr Matson is at stake, favours a liberal approach. However, in this case, the most significant factor is the nature and probative value of the further evidence sought to be led by Mr Matson. He submits that the relevance of the letter from the OAIC dated 3 April 2020 is that it shows that it is uncertain that all the FOI documents that are required to be disclosed were in fact disclosed on 6 November 2019, and that the Court proceeded under a misapprehension that they had been disclosed. However, even if the letter can be interpreted in that way, the difficulty remains as to the relevance of documents that may not have been disclosed under FOI processes to the validity of the Surrender Decision. I dealt with that issue in relation to the substantive grounds earlier in these reasons. It has not been demonstrated that the letter may have any relevant effect upon Mr Matson's case. 399 In addition, it has not been demonstrated that the letter from the AGS dated 23 June 2020 would add anything of substance to Mr Matson's case in the substantive application. The letter seems to assert privilege in respect of copies of the same documents in respect of which privilege has already been claimed. It appears that the copies were created when consulting with third parties and the OAIC about the FOI reviews. 400 Mr Burnside QC did not pursue reopening of the evidence on 25 June 2020, even though the 11 March Discovery Application had sought reopening. Mr Matson's legal representatives were aware of the letters from the OAIC and from the AGS. The decision not to pursue reopening on the basis of those letters was evidently a deliberate decision. The fact that Mr Matson's legal representatives decided not to pursue the application for reopening tells against acceding to a second application for the same relief. 401 It is also relevant to take into account the public interest in the conclusion of litigation. 402 The consequences of the Attorney-General's decision are no doubt extremely important to Mr Matson. However, that does not override the weight of the countervailing factors. The interests of justice are best served by refusing the application to reopen the evidence. 403 Therefore, the 6 July Discovery Application is dismissed.

Consideration of the 30 June Recusal Application 404 The Court received correspondence from Mr Matson dated 30 June 2020 asking that I recuse myself from the matter on the basis of apprehended bias. I treated this correspondence as an application for my recusal. The application was heard on 28 August 2020. Mr Matson made oral submissions at the hearing, and also relies upon written submissions and his affidavits filed on 21 October and 4 November 2019 and 5 February 2020. 405 Mr Matson asserts that I may have "developed a degree of frustration and impatience" in dealing with the application for judicial review, and that this may "affect [my] impartiality in a subconscious way". 406 Mr Matson asserts that: During the hearing on 18 November 2019, I was "visibly disturbed and angered by the proceeding", which was "primarily directed at [him]". I had "unintentionally become emotionally involved in the proceeding". There were "extremely tense verbal exchanges and multiple interruptions" during Mr Matson's submissions at the hearing on 18 November 2019. I was unwilling to allow an adjournment of the proceedings on 18 November 2019 due to Mr Matson's lack of legal representation, and declined to issue a pro bono referral certificate. I did not accept Mr Matson's submission that he was unaware the substantive hearing would be proceeding on 18 November 2019. I forced him to proceed with the hearing notwithstanding that there were no submissions filed (it may be noted that Mr Matson had in fact filed extensive submissions in affidavit form and that he also relied on the written submissions filed by Mr Morris QC). His application to issue a subpoena and his tender of a bundle of critical documents was refused. I said that Mr Matson knew about a guillotine order that had been made on 21 October 2019, when he asserts that he was not notified by his counsel of that order. The processes of the Court and the issues he had to address were not adequately explained to him during the hearing of 18 November 2019. He was not allowed an extension of time to file written submissions, whereas the Attorney-General was readily granted an extension. A Judicial Registrar of the Court wrote to him on 31 January 2020 saying that I was not willing to make any orders in relation to the filing of further submissions after judgment was reserved without an application being filed. I "appeared furious" at the case management hearing on 4 March 2020, particularly about his amended application having been placed on the bench. I described his amended application as a "mess". I was "quite cold" and "unsympathetic" to his request for a pro bono referral certificate to be issued on 4 March 2020. I refused to deal with Mr Matson's notice to produce on 4 March 2020 because I was "clearly angry". 407 In Ebner at 344-345, it was held that apprehended bias is established, "if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". 408 In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100, Gaudron and McHugh JJ observed: When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. 409 In Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, Mason J held: It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established". Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. (Citations omitted.) (See also Re Polites; Ex Parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 per Brennan, Gaudron and McHugh JJ at 85-86.) 410 As these passages make clear, a reasonable apprehension of bias because of prejudgment must be "firmly established". Further, it is important that judicial officers discharge their duty to sit and do not accede too readily to suggestions of an appearance of bias. 411 In Johnson v Johnson, the plurality observed at [13] that for a judge to express tentative views and to intervene in the conduct of a case does not, of itself, indicate apprehended bias: Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case". Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (Citations omitted.) 412 In Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530, Greenwood J and I observed at [26]: This passage from Johnson v Johnson applies equally where a party is self-represented. It is a part of the judicial function of deciding cases to question and challenge the submissions being made. After all, a judge must be able to understand the competing arguments and their consequences in order to decide which is the correct or preferable argument. The questioning and testing of submissions may legitimately be vigorous and robust. 413 Mr Matson's allegations of apprehended bias appear to fall into three categories. First, he submits that rulings I have made against him in the course of the proceedings indicate an appearance of prejudgment. These rulings include declining to issue a pro bono referral certificate, refusing an adjournment, refusing to accept the tender of documents and declining to deal with his notice to produce at a case management hearing. However, the fact that a judge has made interlocutory rulings against one party is not enough, without more, to establish apprehended bias: see Re JRL; Ex parte CJL at 352; Ebner at [7]; Zanker v Kupsch [2014] SASCFC 13 at [76]; Hamod v State of New South Wales (No 11) [2008] NSWSC 967 at [9]. I do not accept that a fair-minded lay observer might reasonably apprehend that, by reason of my rulings, I might not bring an impartial mind to the resolution of the proceedings. 414 The second category of allegations of apprehended bias relates to my demeanour towards and treatment of Mr Matson during the hearings on 18 November 2019 and 4 March 2020. 415 These allegations include that I appeared visibly disturbed and angered towards Mr Matson during one hearing and, during another hearing, appeared furious and was cold and unsympathetic towards his application for a pro bono referral certificate. His apparent perception that I was angry, emotional, furious, cold and unsympathetic reflects a misperception, misapprehension or misunderstanding of my demeanour, mood and emotions. I consider that I have treated Mr Matson with fairness throughout the proceeding. I do not think that there could be any reasonable perception other than that I have treated him dispassionately. 416 I did interrupt and question Mr Matson at times during the hearing of 18 November 2019. I did so in order to try to understand his arguments. In particular, while he focussed upon non-disclosure of material under his FOI applications, allegations of misconduct by Departmental officers in relation to those applications and deficiencies in the 6 November FOI Documents, it was difficult to understand the precise relevance of his allegations to his assertion of invalidity of the Surrender Decision. Further, it was difficult to understand the relevance of documents he wished to tender concerning the FOI process. I consider that a reasonable observer would recognise that I was attempting to understand Mr Matson's case and to encourage him to address issues I considered to be relevant and significant. It may be noted that I gave him the opportunity to file an affidavit and written submissions after the hearing concerning the 6 November FOI documents he wished to tender. 417 During the course of the hearing on 18 November 2019, I did say that Mr Matson knew about an order that had been made on 21 October 2019 requiring Mr Matson's amended originating application to be filed by a certain date. Mr Matson was not present at that hearing on 21 October 2019, Mr Morris QC having appeared on his behalf. My comment was made because I assumed that Mr Morris QC must have informed Mr Matson about the order, as would usually be expected. However, Mr Matson claimed he had not been informed of that order. I later indicated during the hearing that, despite non-compliance with the order, I would consider Mr Matson's application for leave to file his Draft Amended Originating Application and that if I considered it had sufficient merit, I was likely to allow it to be filed. I cannot see how that course of events demonstrates apprehended bias. 418 I did refer to Mr Matson's proposed amended application as a "mess" at the hearing on 4 March 2020. That is because that was my perception of the document, which failed to succinctly and clearly articulate the orders Mr Matson was seeking. However, I gave Mr Matson leave to file another version that more succinctly set out the orders he sought. Again, I cannot see that this demonstrates apprehended bias. 419 The third category of allegations of apprehended bias relates to more favourable treatment of the Attorney-General. Mr Matson claims that he was not allowed an extension of time to file written submissions, whereas the Attorney-General was granted an extension. Mr Matson asserts that on 11 December 2019, he wrote to the Court asking for an extension of time to file written submissions that had been ordered on 18 November 2019, but that the request was ignored. He asserts that, on the other hand, the Attorney-General was readily granted an extension. Mr Matson's letter did not come to my attention (and in fact the Registry has not been able to locate any record of that letter being received). Mr Matson was given the opportunity to make submissions upon the Attorney-General's request for an extension, and indicated by letter that he made no objection to the request. Mr Matson's submission that there was differential treatment cannot be accepted. 420 I cannot see any substance in Mr Matson's allegations of apprehended bias, whether the allegations are taken individually or in combination. The application for my recusal will therefore be dismissed. 421 The Attorney-General submitted that Mr Matson had waived his right to seek my recusal by failing to instruct Mr Burnside QC to raise the issue at the hearing on 25 June 2020, given that the allegations related to the conduct of hearings on 18 November 2019 and 4 March 2020. The Attorney-General submitted that it was merely opportunistic to raise the allegation after I had dismissed Mr Matson's application for discovery. 422 If I were to decide upon the issue of waiver, I would have to do so upon the hypothetical basis of my acceptance that I should recuse myself for apprehended bias. On that hypothesis, it would be inappropriate for me to consider whether Mr Matson should nevertheless be taken to have waived his right to object. I will therefore refrain from deciding the issue.

Consideration of the 16 July Reopening application 423 Mr Matson filed an application on 16 July 2020 seeking, inter alia, that the 11 March Discovery Application be "reopened", production of further documents and bail. 424 The further documents sought are unredacted copies of the "Confidential Information" referred to in the letter from the AGS dated 23 June 2020 and unredacted copies of emails from the Department to the OAIC dated 12 and 25 March 2020. 425 The 16 July Reopening application was heard on 28 August 2020. Mr Matson did not seek to have his bail application dealt with on that day. Mr Matson relied on his written submissions and his affidavits sworn on 21 October and 4 November 2019, and 29 January, 19 February, 1 April, 22 April, 9 June, 20 June, 29 June, 10 July, 14 August, 17 August and 25 August 2020. 426 I cannot see any substantive difference between the 16 July Reopening application and the 6 July Discovery Application. I am unable to see that the documents sought may be directly relevant to Mr Matson's case. For the reasons given in relation to the 6 July Discovery Application, the 16 July Reopening application must be dismissed.

Consideration of the 5 August Stay Application 427 Mr Matson filed an application on 5 August 2020 seeking that my orders made on 30 July 2020 listing Mr Matson's various interlocutory applications for a hearing on 28 August 2020 be vacated. It also sought a temporary stay of the interlocutory proceedings and the substantive proceedings until Mr Matson's originating application of 28 July 2020, which was allocated to another judge, was heard and determined. It also sought the provision of transcripts of various hearings. 428 Mr Matson was informed that I declined to vacate the orders made on 30 July 2020. He had not raised any adequate basis for the vacation of those orders. Mr Matson was provided with a copy of such of the transcripts he had requested as had been received by the Court. 429 The remainder of the 5 August Stay Application was heard on 28 August 2020. Mr Matson relied on his written submissions and his affidavits dated 14 August, 17 August and 25 August 2020. 430 Mr Matson submits that his own substantive and interlocutory applications should be stayed until his originating application dated 28 July 2020 is heard and determined. The 28 July 2020 originating application substantially overlaps with the grounds set out in the Draft Amended Originating Application relied upon in this proceeding. 431 The grounds upon which Mr Matson seeks his stay are that: He does not have access to legal representation and is prejudiced and disadvantaged in his ability to present the case until that situation is remedied. There has been a significant development in that a letter from the AGS dated 31 July 2020 indicated that the Department was unable to prepare schedules of documents that cross reference the 2018 FOI Documents with the 6 November FOI Documents. This leads Mr Matson to conclude that the 6 November FOI Documents are inaccurate and incomplete and cannot be reconciled against the original decision. There has been a significant development in respect of the "Confidential Information", referred to in the letter from the AGS dated 23 June 2020, that has come to light in the AAT proceedings. COVID-19 is rampant in the USA, so that Mr Matson's surrender would be prima facie unlawful, in breach of fundamental human rights and would violate the constitutional implied right to protection from cruel and unusual punishment. Mr Matson is now in his sixth year of detention and seeks a speedy resolution to his application for habeas corpus in his 28 July 2020 originating application. The Department has recently provided Mr Matson with a new FOI decision, which again provides evidence in support of Mr Matson's claim that the Department continues to employ an ongoing litigation strategy against him by denying him access to relevant documents and providing misleading and erroneous FOI decisions. 432 There is no entitlement to legal representation in respect of an extradition proceeding: Rivera v United States of America [2004] FCAFC 154 at [23]-[29]. Mr Matson has previously obtained pro bono legal representation from lawyers who ceased to be willing to represent him. Mr Matson has had the benefit of preparation of written submissions by Mr Morris QC in respect of those arguments he considered it appropriate to make. I am not satisfied that he is likely to secure further pro bono representation in respect of all of his interlocutory and substantive applications within a reasonable time (Mr Bubendorfer is now representing him for limited purposes and advances limited arguments). 433 Mr Matson also continues to place great emphasis upon what he complains is the inadequacy or incompleteness of the bundle of FOI documents provided to him on 6 November 2019. However, he has not explained precisely how any such inadequacy or incompleteness affects the validity of the Surrender Decision. He also emphasises the difficulty that the Department seems to have in reconciling schedules of the FOI documents. Again, it has not been explained how this affects the validity of the Surrender Decision. 434 I am not satisfied that these grounds, individually or collectively, provide an adequate basis for staying, or adjourning, the interlocutory and substantive applications. The 5 August Stay Application must be dismissed.

Consideration of the 19 August Adjournment Application 435 Mr Matson filed an interlocutory application on 19 August 2020 seeking an adjournment of the hearing listed for 28 August 2020. The application was supported by his written submissions and his affidavits sworn on 13 and 14 August 2020. The application also seeks orders that: The Court provide Mr Matson with a DVD comprising all material filed in the proceeding and all correspondence forwarded to the Court by the parties and by the Court to the parties in the proceeding. The direction made under s 20(1A) of the Federal Court of Australia Act by Allsop CJ in relation to QUD 569 of 2016 be provided to him. His correspondence to the Court of 29 and 30 June, 7, 10, 28, 29 and 31 July and 2, 10 and 13 August 2020 be forwarded to the Chief Justice. The Court purchase transcripts of the hearings of 22 July and 27 September 2019 and provide copies to him. The Court provide information and assistance to him as to the correct processes and procedure for filing an appeal in relation to the decision made by a Judicial Registrar on 15 November 2019 refusing his request for leave to issue a subpoena. 436 At the hearing on 28 August 2020, Mr Matson made submissions in support of his application for an adjournment. He argued that the hearing should be adjourned for the following reasons: Mr Matson seeks the opportunity to engage legal representation and obtain legal advice in relation to his applications, and to receive a response from the Attorney-General from whom he had requested special funding. He had sent an affidavit of 25 August 2020 to the Court annexing a number of documents, including articles, correspondence, and documents obtained under the FOI process. The volume of documents was too large for the jail authorities to scan, and the originals were sent to the Court by post, but had not yet been received. He wanted to have time to obtain and consider the "Confidential Information" in his AAT proceeding. Some further documents were to be provided to him in the following week. He required time to prepare a subpoena in relation to the "Confidential Information" held by the Department. He wanted time to engage pro bono counsel in relation to the cross-examination of Departmental officers and officers of the OAIC, as well as the Attorney-General and the Acting Attorney-General. He wanted an opportunity to receive a response from the Attorney-General to his letter of 11 August 2020 requesting that the Surrender Decision be reconsidered in light of the COVID-19 pandemic in the USA and in light of the Withheld Documents that had come to light. He wanted an opportunity for the Department to complete two remaining annotated schedules of documents for his FOI requests and to prepare a submission as to the inaccuracy and incompleteness of the 6 November FOI Documents. He wished to make an urgent bail application. He wanted to allow the Department to provide their decision in relation to another FOI request. He wanted to allow the Department time to complete the internal review of another FOI application which sought important documents. 437 The Attorney-General opposed the application for adjournment. 438 I declined the application for an adjournment. I was not satisfied that Mr Matson had adequately demonstrated the relevance of the alleged inaccuracies and discrepancies in the FOI disclosures, or of the further documents or unredacted documents that he sought to obtain, to the Surrender Decision. 439 I was not satisfied that Mr Matson was likely to obtain further pro bono representation within a reasonable time, particularly given that he previously had two sets of lawyers who were no longer willing to act for him. I was not satisfied that there was any reasonable prospect that the Attorney-General would approve special funding. 440 I was not satisfied that Mr Matson's request that the Attorney-General reconsider the Surrender Decision was an adequate reason to adjourn the proceedings. 441 I was not satisfied that Mr Matson's intention to bring a bail application was a reason to adjourn the hearing of the applications. 442 I was not satisfied that the fact that Mr Matson had not kept copies of the annexures to his affidavit dated 25 August 2020 was a sufficient reason to adjourn the hearing of the applications. In any event, I allowed Mr Matson to provide written submissions with respect to the annexures. 443 The Attorney-General would be prejudiced, at least as to costs, if the hearings were adjourned. 444 Section 37M(1) of the Federal Court of Australia Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and "as quickly, inexpensively and efficiently as possible". Even though Mr Matson seems willing to remain in custody while his various applications wind their way slowly through the Court and the AAT, the public interest in the timely disposition of proceedings cannot be ignored. 445 I was not satisfied that any of the matters relied on by Mr Matson, either individually or in combination, provided an adequate basis for adjourning the hearings. I refused Mr Matson's application for adjournment of the applications. 446 On 19 August 2020, a Judicial Registrar of the Court wrote to Mr Matson stating that he declined to provide Mr Matson's correspondence to the Chief Justice on the basis that there was nothing in the correspondence that warranted that course. The Judicial Registrar also refused Mr Matson's application for a DVD containing all filed documents. 447 Mr Matson submits that he should be provided with a DVD containing all of the material filed in the proceeding. He said that he did not have all of the material. He did not explain why he does not have all of the material, or which material he does not have. 448 I am not prepared to make an order that Mr Matson be provided with a DVD containing all of the material that has been filed, and all of the correspondence between the parties and the Court. The material that has been filed is voluminous and will require the expenditure of substantial time and resources to scan all of the material. Mr Matson has not explained why he has not simply requested copies of those documents that he does not have copies of. Such a request might be more manageable. I am not prepared to make an order in the form he has sought. 449 I am not prepared to make an order that copies of Mr Matson's correspondence be provided to the Chief Justice. If Mr Matson wishes to send correspondence to the Chief Justice, that is a matter for him. However, I cannot see any reason why there should be an order directing the provision of Mr Matson's correspondence to the Chief Justice. 450 Mr Matson submitted that the reason the Chief Justice made a direction under s 20(1A) of the Federal Court of Australia Act to remove the proceeding in QUD 569 of 2016 from the original jurisdiction into the appellate jurisdiction is because the matter was "of sufficient significance and importance to justify doing so". The direction is submitted to be of relevance to the present proceedings because it supports Mr Matson's argument that the material and submissions filed in QUD 569 of 2016 were "important documents", and as such should have been put before, and considered by, the Attorney-General in making the Surrender Decision. However, I am not satisfied that the direction moving the proceeding from the original to the appellate jurisdiction has any relevance to the application for review of the Surrender Decision. I decline to order that Mr Matson be provided with a copy of that direction. However, under r 2.32(1) of the Federal Court Rules, a party is entitled to inspect any document in the proceeding, subject to presently irrelevant exceptions. As Mr Matson's circumstances make it impractical for him to inspect documents, I will ask the District Registrar to provide him with a copy of the Chief Justices direction. 451 Mr Matson has sought an order that the Court purchase transcripts for the hearings on 22 July and 27 September 2019 and provide him with copies of the transcripts. Mr Matson was present at the hearing on 22 July 2019, and was also represented by counsel. Whilst Mr Matson was not present at the case management hearing on 27 September 2019, he was again represented by counsel, and no orders were made. Mr Matson has not explained the relevance of these transcripts to his conduct of the substantive proceeding. I am not satisfied that it is appropriate that public resources should be expended in purchasing these transcripts. I decline to make an order in the form sought by Mr Matson. 452 I decline to make any order that the Court provide information and assistance to Mr Matson as to the correct process and procedure for filing an appeal in relation to a decision made by the Judicial Registrar on 15 November 2019 refusing leave to issue a subpoena. Mr Matson has not asserted that he has been unable to ascertain the correct procedure. He has shown great resourcefulness in bringing and prosecuting a myriad of other applications. I am not satisfied that it is appropriate for the Court to make an order of the type sought by Mr Matson. However, if he has questions about the appropriate procedure, he can approach the Registry. 453 For these reasons, I dismiss the 19 August Adjournment Application. 454 I note that Mr Matson was informed by correspondence dated 25 August 2020 that his applications for the issue of subpoenas to various Departmental and OAIC officers and Ministers would be considered at the hearing on 28 August 2020. However, Mr Matson did not make submissions in support of those applications. Accordingly, I have not considered the applications for leave to issue the subpoenas.

Consideration of the 15 September Reopening Application 455 Mr Matson filed an interlocutory application on 15 September 2020, seeking that the substantive proceedings be reopened due to fresh evidence coming to light. The application also sought orders that: a copy of the transcript of the hearing on 28 August 2020 and a copy of the orders made on 28 August 2020 be provided to Mr Matson; a copy of Mr Matson's affidavit sworn on 25 August 2020 be provided to Mr Matson; the orders made on 28 August 2020, the substantive proceedings and the interlocutory applications filed on 6 July, 30 June, 16 July, 5 August and 19 August 2020 be stayed until the originating application dated 1 September 2020 is heard and determined; documents "associated and relevant" to alleged "third party fraud" be produced to the Court; further discovery be ordered; leave be granted to adduce evidence prepared by an "expert witness" on government computer systems and record keeping policy and procedure; leave be granted to further amend his Draft Amended Originating Application dated 7 November 2019 to raise the new ground of "third party fraud"; the Court provide information and assistance to properly prepare a pleading and particulars for a case of "third party fraud"; leave be granted to issue subpoenas; leave be granted to adduce further "fresh evidence"; the proposed orders contained in the interlocutory application filed on 6 July 2020 be made; bail be granted. 456 I made orders for the filing of submissions, and requested that the parties indicate whether an oral hearing was sought, or whether the matter should be decided on the papers. Mr Matson indicated that an oral hearing was sought. The Attorney-General submitted that the interlocutory application should be determined on the papers. I do not consider that it would be in the interests of justice to allow a further oral hearing in this matter. Judgment was reserved on 18 November 2019. Since that date, Mr Matson has filed nine interlocutory applications, some of which merely seek to re-agitate matters that were dealt with at the hearing on 18 November 2019. Mr Matson has also had the opportunity to be heard twice since judgment was reserved, on 25 June 2020 and 28 August 2020. Mr Matson has filed detailed written submissions with respect to the 15 September Reopening Application. There is substantial overlap with issues upon which he has already been heard. I consider that it is appropriate to decide this application on the papers. 457 In support of the 15 September Reopening Application, Mr Matson relies on his written submissions, and his affidavits dated 25 and 26 August, 24 September and 6 October 2020. 458 The 15 September Reopening Application primarily seeks to reopen the substantive proceedings to allow "fresh evidence" to be adduced. The fresh evidence is stated to have come to light via FOI decisions dated 28 August and 10 September 2020. The FOI decisions are stated to disclose "important email communications made between the OAIC and the Department" which demonstrate "third party fraud". It is submitted that the evidence contained in these email communications is credible and highly probative as it demonstrates that there was an unlawful and deliberate attempt by Departmental officers to prevent relevant material from being provided to Mr Matson and being placed before the Attorney-General, and that this relevant material was deliberately destroyed "in an attempt to bullet-proof the existing surrender decision…from the present judicial review proceeding". Mr Matson submits that this fresh evidence could not have been reasonably foreseen at the hearing on 18 November 2019, and has only come to light in the FOI decisions dated 28 August and 10 September 2020. 459 Mr Matson submits that this is a situation which clearly qualifies as one of the recognised classes of cases in which a court may grant leave to reopen, namely where there is fresh evidence which has become available, and where there has been a misapprehension of the facts. It is also submitted that in view of the new ground of "third-party fraud" sought to be relied upon, the interests of justice are better served by allowing the matter to be reopened. 460 The Attorney-General submits that the interests of justice are not served by allowing the substantive proceeding to be reopened. Particular emphasis is placed on the importance of achieving finality in proceedings and the need to avoid unnecessary cost and delay, which are submitted to be "powerful considerations which weigh against leave being granted to reopen this case". The Attorney-General notes that judgment has been reserved for close to 11 months, and that the matter has been on foot since February 2019. The Attorney-General emphasises that there have been multiple adjournments, vacated hearings and applications for leave granted to file further submissions even after judgment was reserved. 461 The Attorney-General also submits that this application is no more than an attempt to re-agitate arguments regarding fraud, "litigation strategy" and delay purportedly causing prejudice. It is submitted that Mr Matson should not be permitted to re-argue something that was already argued by him both during the hearing on 18 November 2019 and the hearing on 25 June 2020. That is said to be inconsistent with the requirements of s 37M(1) of the Federal Court of Australia Act. 462 The Attorney-General relies on the principles relevant to an application to reopen summarised by Kenny J in Bradshaw at [24]. The Attorney-General also relies on Hawthorn Glen Pty Ltd (ACN 004 061 214) v Aconex Pty Ltd (ACN 091 376 091) (No 1) [2007] FCA 2010, where Goldberg J stated at [48]: The interests of justice require that commercial litigation of the type in this proceeding should be conducted expeditiously and that parties should only be able, after judgment has been reserved, to re‑visit tactical decisions they have made in exceptional circumstances where injustice might otherwise result… There needs to be a finality to the process of litigation and a limit on the number of times a party can re‑visit issues which have arisen in the course of a trial and have been addressed. 463 As I said with respect to the 6 July Discovery Application, the nature of the proceeding, being one in which the liberty of Mr Matson is at stake, favours a liberal approach. However, in this case, the most significant factor is the nature and probative value of the further evidence sought to be led by Mr Matson. He submits that the relevance of the emails is that they make out a prima facie case of "third-party fraud", and confirm that Departmental officers not only withheld relevant material from Mr Matson and the Attorney-General, but also deleted or did not save specific files and documents which were critical to Mr Matson's case, being documents within the scope of his FOI requests. 464 The ground of "third-party fraud" seems to be similar to the allegations made in the Draft Amended Originating Application that various Departmental officers perpetrated a fraud on the Attorney-General that vitiates the Surrender Decision. I refer to my discussion earlier in these reasons of the High Court's decision in SZFDE, where it was found that a tribunal, by reason of fraud perpetrated by a third-party, was disabled from the due discharge of its imperative statutory functions, including the requirement to provide natural justice. 465 Mr Matson's submissions draw a number of far-fetched inferences that the acts of Departmental officers in not saving or deleting certain documents was "a deliberate attempt to ensure the "relevant material"…would never be disclosed or able to be identified". The evidence goes nowhere near demonstrating fraudulent conduct by Departmental officers. The alleged "fresh evidence" is not sufficiently probative to allow the substantive proceedings to be reopened. 466 Mr Matson's submissions in reply also pointed to other "fresh evidence" that was provided to him in the AAT process which supports his application for reopening, including a document which indicated the extradition process has been on-foot since as early as 2006. Mr Matson made submissions about the relevance and probative value of this evidence as follows: This extradition related document was relevant material that was favourable to the Applicant's argument of egregious delay and abuse of process; and such important material should have been weighed on the scales and properly considered by the Acting Attorney-General as part of the surrender decision process as it proved that the Applicant was not beyond the reach of law enforcement and that the US Government was clearly not diligent in attempting to locate the Applicant and bring him to trial by way of an extradition request... 467 Mr Matson submits that this material had the capacity to influence the outcome of the Surrender Decision, and as such the substantive proceeding should be reopened to allow this fresh evidence to be tendered. However, as I discussed earlier in these reasons, the Departmental Advice considered Mr Matson's allegations of delay by the USA, including delay between the alleged offences and the issuing of an indictment, and then delay in making the extradition request. The Department ultimately concluded that: 93. In respect of Mr Matson's assertion there has been a purported delay of approximately 10 years since the issuance of the superseding indictment to Australia's receipt of the extradition request, the department concedes that this delay is not ideal. However, the department does not accept that there was egregious delay as alleged… … 96. …The department therefore does not consider that the US' purported delay in seeking Mr Matson's extradition will result in unfairness or prejudice in the conduct of his trial. 468 I do not consider that the "fresh evidence" sought to be tendered by Mr Matson would have made any difference to the outcome of the Surrender Decision. The alleged "fresh evidence" is not sufficiently probative to allow the substantive proceedings to be reopened. 469 It is also relevant to take into account the public interest in the conclusion of the litigation. 470 The interests of justice are best served by refusing the application to reopen the evidence. I decline to make proposed Orders 6 to 17. 471 The 15 September Reopening Application also seeks orders that the substantive proceeding and various interlocutory applications be stayed until the originating application dated 1 September 2020 against the OAIC is heard and determined. Mr Matson's submissions do not address this point. It is not apparent why these matters cannot be determined while a separate originating application is on foot. I decline to make proposed Orders 3 to 5. 472 Mr Matson also seeks orders for the provision of a transcript and orders, and a copy of his affidavit dated 25 August 2020. The Registry provided the documents sought in proposed Orders 1 and 2 to Mr Matson on 15 September 2020, and as such there is no need for those orders to be made. 473 The 15 September Reopening Application also seeks that Mr Matson be granted bail. Mr Matson has separately made an application for bail in a related proceeding before another judge. That application has already been heard and judgment reserved. It is not appropriate to separately consider another application for bail. 474 It may be noted that on 27 October 2020, the Court received correspondence from the Attorney-General's lawyers, making further submissions with respect to the 15 September Reopening Application. As these further submissions were not made under the authority of any order, I have ignored them. 475 The 15 September Reopening Application is dismissed.

Consideration of the 25 September Reopening Application 476 An interlocutory application was filed on 25 September 2020 by Mr Bubendorfer, acting on behalf of Mr Matson. The application seeks an order granting Mr Matson leave to reopen the proceedings, and leave to make further submissions as to error of law on the part of the Attorney-General. 477 I made orders for the filing of submissions, and requested that the parties indicate whether an oral hearing was sought, or whether the matter should be decided on the papers. Mr Bubendorfer indicated that an oral hearing was sought. The Attorney-General submitted that the interlocutory application should be determined on the papers. For the reasons I have given with respect to the 15 September Reopening Application, I do not consider that it would be in the interests of justice to allow a further oral hearing in this matter. I will therefore decide this application on the papers. 478 In support of the 25 September Reopening Application, Mr Matson relies on the written submissions prepared by Mr Bubendorfer, and his affidavit dated 6 October 2020. Mr Bubendorfer did not file submissions in reply. 479 Mr Bubendorfer submits that the substantive proceeding should be reopened, "for the purposes of further submissions as to whether the failure of the respondent to take into account the presumptive prejudice appearing on the face of the record amounted to an error of law, such that the respondent was precluded by want of jurisdiction from making a determination pursuant to s 22(2) of the Extradition Act". 480 The Attorney-General submits that the interests of justice are not served by allowing the substantive proceeding to be reopened. The Attorney-General also submits that Mr Bubendorfer's submissions have not made any attempt to engage with the legal issues which must be considered before leave is granted to reopen proceedings, and merely attempt to rehash arguments that were raised by Mr Matson at the hearing on 18 November 2019. The Attorney-General further submits that to the extent that arguments advanced by Mr Bubendorfer are a "new development or new approach to the issue of delay", no explanation has been offered as to why such arguments were not advanced at the previous hearings, when Mr Matson was represented by senior counsel. It is ultimately submitted that the case which Mr Matson seeks to advance if leave is granted to reopen lacks merit. 481 The most significant factor is the nature and probative value of the further evidence sought to be led by Mr Matson. Mr Bubendorfer argues that the delay of the USA in seeking Mr Matson's extradition gives rise to "presumptive invalidity" under USA law. This is said to arise from the Sixth Amendment to the US Constitution which states that, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…". Mr Bubendorfer submits that the Attorney-General should have known that a rebuttable presumption of constitutional invalidity had arisen and that he was required to ascertain whether the USA had provided sufficient evidence by which that presumption might be rebutted. 482 The Attorney-General considered the delay of the USA authorities. There was no submission made by or on behalf of Mr Matson prior to the making of the Surrender Decision that the warrant was invalid by reason of the Sixth Amendment. In these circumstances, Mr Bubendorfer has not explained how or why the Attorney-General had an obligation under s 22(2) of the Extradition Act to investigate the presumptive invalidity that is now asserted. In Rivera, the Full Court indicated at [14] that the Attorney-General is not bound to take into account any particular matters. Further, in Foster v Minister for Customs and Justice, the High Court rejected an argument that, an issue as to the law of the United Kingdom having been raised, the Minister was bound to seek advice or information from some person familiar with the law of that country. The High Court at [30] and [46] held that there was no statutory obligation which bound the Minister to undertake further investigation or enquiry. 483 In addition, s 22(2) of the Extradition Act requires the Attorney-General to determine whether the person is to be surrendered in relation to a "qualifying extradition offence". The expression "qualifying extradition offence" is defined in s 22(1) to mean, relevantly, any extradition offence in relation to which the Magistrate who made the order under s 19(9) determined that the person was eligible for surrender within the meaning of s 19(2). In this case, a Magistrate determined that Mr Matson was eligible for surrender for the offences which the Attorney-General later determined to be "qualifying extradition offences". The challenge to the Magistrate's decision was ultimately rejected by the Full Court. Mr Bubendorfer's argument seems to assert that the Attorney-General should have determined, in effect, that the Magistrates decision under s 19(9) of the Extradition Act was wrongly made. Mr Bubendorfer has not indicated how the failure of the Attorney-General to do so, particularly where no submission was made to the Attorney-General that the Magistrate's decision was wrong, demonstrates error on the part of the Attorney-General. 484 Further, the content of the law of the USA is required to be proved by expert evidence: see Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at [115]. No such evidence has been advanced to support Mr Bubendorfer's submissions concerning the content and effect of USA law. 485 Given the significant lapse of time since judgment was reserved on 18 November 2019, I do not consider that the interests of justice would be served by allowing the proceeding to be reopened. I again emphasise the importance of achieving finality in proceedings and the need to avoid unnecessary cost and delay. I do not consider that allowing Mr Matson to reopen the proceedings to litigate the issues raised in this application would comply with the purpose of civil practice and procedure provisions stated in s 37M(1) of the Federal Court of Australia Act, of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible. 486 The 25 September Reopening Application is dismissed.

Conclusion 487 For the reasons I have given, I dismiss each of the interlocutory applications filed by Mr Matson after the final hearing on 18 November 2019, and I dismiss the substantive proceeding. 488 I will order that Mr Matson pay the Attorney-General's costs of the proceeding. I certify that the preceding four hundred and eighty-eight (488) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.