Draft grounds of appeal 16, 19, 20, 21, 26, 32, 33, 34, 35, 36, 43
91 In these draft grounds of appeal Mr Matson claimed (inter alia) error on the part of his Honour in not recognising the error of the Attorney-General not to revoke, reconsider and remake the existing s 22 surrender documents in circumstances of the COVID-19 pandemic.
92 These draft grounds of appeal are as follows:
16. The primary Judge erred under the subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The COVID-19 pandemic" at paragraph [120] by finding that:
It is not reasonably arguable that the COVID-19 pandemic could have the effect of rendering invalid any of the steps in relation to the applicant's extradition taken before it's onset. That is to say, it could not have had the effect of rendering invalid the steps taken in 2015, 2016 and 2019 in relation to the applicant's extradition, before the pandemic had ever arisen. However, the applicant sought to rely on it as a changed circumstances which would make the enforcement of the Surrender Warrant unlawful.
On the basis that the Appellant had submitted that the s 22 decision was unlawful on the basis that the Honourable Christian Porter M.P. had failed to revoke, reconsider and remake the existing s 22 surrender determination, in circumstances where the COVID-19 pandemic in the USA obliged the Attorney-General both morally and legally to do so.
19. The primary Judge further erred under subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The applicant's previous reliance on the ICCPR" at paragraph [131] by finding that:
... I also note that, in relation to the applications to reopen the case which the applicant did make, Rangiah J accepted that the nature of the proceeding, being one in which the liberty of the applicant was at stake, favoured a liberal approach in the exercise of the discretion to allow reopening, [at 398] It can be inferred that his Honour would have approached an application to reopen so that the circumstances created by the COVID-19 pandemic could be considered in the same way
On the basis that the COVID-19 pandemic was not, and could not attack the decision of the Honourable Greg Hunt M.P. dated 1 February 2019, because the COVID-19 pandemic occurred after the decision. It was a situation where COVID-19 gave rise to grounds to justify a judicial review application of the decision of the Honourable Christian Porter M.P. Attorney-General to decline to revoke, reconsider and remake the existing s 22 surrender determination. The option of seeking to reopen QUD107/2019 (an application reviewing the decision of the Honourable Greg Hunt M.P.) on the basis of the circumstances created by the COVID-19 pandemic, clearly could not have been considered in the same way by Justice Rangiah.
20. The primary Judge erred under the subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The applicant's previous reliance on the ICCPR" at paragraph [132] by finding that:
In my view, the claims which the applicant now makes in reliance on the COVID-19 pandemic are claims to which an Anshun estoppel applies. As I have noted, the applicant had made the execution of the Surrender Warrant an issue in Actionl07/2019; he had relied on the COVID-19 pandemic for some purposes in that litigation; his reliance on the COVID-19 pandemic is part of the basis upon which he seeks now to avoid the execution of the warrant; the relief which the applicant now seeks is inconsistent with the dismissal of his application for like relief in Action QUD107/2019; and it should be held that his present claim is so relevant to the subject matter of Action QUD107/2019, that it was unreasonable for the applicant not to have relied on the matter in those proceedings. There has to be an end to litigation. Claims or claims are not to be "saved up" for later litigation in which the same relief is sought. It is unreasonable for the applicant to seek to pursue in successive proceedings different bases for the same substantive relief
On the basis that the issue of COVID-19 in the USA and the Attorney-General's decision to decline to revoke, reconsider and remake the existing s 22 surrender decision, only came to light after the decision of the Honourable Justice Rangiah had been handed down in QUD107/2019, so the issue of COVID-19 in the USA and the Attorney-General's decision to decline to revoke, reconsider and remake the existing s 22 surrender decision because of COVID-19 was not saved up, it was appropriately raised before Justice White in QUD254/2020, as soon as was reasonably practicable in light of the Appellant's incarceration and intervening Christmas break period from when the Appellant received the letter from the Honourable Christian Porter M.P. advising he has no power to reconsider or remake an s 22 determination made under the Extradition Act 1988 (Cth). The Appellant was entitled to have the proceeding reopened because of the fresh evidence of the Attorney-General's letter and because of the fact that the Attorney-General incorrectly viewed and misapprehended his power to reconsider or remake an s 22 determination made under the Extradition Act 1988 (Cth).
21. The primary Judge erred under the subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The applicant's previous reliance on the ICCPR" at paragraph [132] by finding that:
Even if Anshun estoppel not be applicable, it is an abuse of process for the applicant to pursue in successive proceedings claims for the same substantive relief
On the basis that the Appellant was legally entitled to raise the issue of COVID-19 in the USA and the Attorney-General's decision to decline to revoke, reconsider and remake the existing s 22 surrender decision, and that seeking relief on that basis was not an abuse of process, it was an important legal question to be determined at a time of a global pandemic, and moreover, in circumstances where the first legal officer of the Commonwealth has incorrectly viewed and misapprehended his power to reconsider or remake an s 22 determination made under the Extradition Act 1988 (Cth).
26. The primary Judge further erred under the subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The asserted constitutional implied rights" at paragraph [145] by finding that:
To the extent that it has been held that the applicant's Indigenous ancestry does not give rise to a constitutional implied right, that is now the subject of res judicata To the extent that it is not so subject, the claims which the applicant now seeks to advance are, in my view, so closely connected with his previous claims that it can be said to be unreasonable for the applicant not to have raised them in the context of Action QUD107/2019. I repeat what I said previously about there needing to be an end to the litigation. An Anshun estoppel applies.
On the basis that the claims made by the Appellant before the primary Judge in both the Appellant's originating application dated 28 July 2020 and filed 4 August 2020 and his amended application dated 6 January 2021 and filed 11 January 2021, are not so closely connected with his previous claims, which previous claims to constitutional implied rights in QUD107/2019 plainly made no reference to COVID-19, or to the power of the AttorneyGeneral to revoke, reconsider and remake an s 22 surrender determination under the Extradition Act 1988 (Cth). The Appellant's asserted constitutional implied rights were not consider on their merits by Justice Rangiah in QUD107/2019, and therefore none of the Appellant's asserted constitutional implied rights claimed in QUD254/2020 can be subject to the doctrines or principles of res judicata or Anshun estoppel.
32. The primary Judge erred under the subheading "the applicant's 6 January 2021 application to reopen" - "the applicable principles" at paragraph [179] by finding that:
…the applicant's present application seems to be in the first and fourth of these categories.
On the basis that the Appellant made it clear in his oral submissions during the 4 February hearing that it was also the inadvertent error of the Attorney-General to take such a course.
33. The primary Judge erred under the subheading "the applicant's 6 January 2021 application to reopen" - "Consideration of reopening with respect to the 2PFAOA" at paragraph [189] by finding that:
First, it is not reasonably arguable that any failure by the Attorney-General in December 2020 to reconsider or revoke the s 22 Decision could have the effect of rendering "unlawful and invalid" the s 22 Decision made by the Acting Attorney-General, Mr Hunt MP, on 1 February 2019, as the applicant wishes to claim in Proposed Order 8. Plainly, such a claim has no reasonable prospects of success.
On the basis that the such an argument did have prospects for success, as the existing decision could be found invalid, on the basis that the Honourable Christian Porter M.P., Attorney-General's failure to revoke, reconsider and remake the existing s 22 Decision, in circumstances where he was morally and legally obliged to do so.
34. The primary Judge erred under the subheading "the applicant's 6 January 2021 application to reopen" - "Consideration of reopening with respect to the 2PFAOA" at paragraph [190] by finding that:
… The matter contained in the proposed [7(e)] cannot have the effect of making the claim for Proposed Order 7 reasonably arguable.
On the basis that if the respondent's submission about the Attorney-General not having the power to revoke, reconsider and remake a s 22 determination under the Extradition Act 1988 (Cth) is correct, the Appellant's matter raised at Proposed Ground 7(e) could make the claim for Proposed Order 7 reasonably arguable.
35. The primary Judge erred under the subheading "the applicant's 6 January 2021 application to reopen" - "Consideration of reopening with respect to the 2PFAOA" at paragraph [191] by finding that:
I also consider that the claim for Proposed Order 9 is not reasonably arguable. Even if the Attorney-General does have a power to reconsider and revoke a s 22 decision, the Attorney-General cannot be compelled to exercise it, let alone to exercise it in the applicant's favour. In this regard, counsel for the respondents referred to Rivera v Minister for Justice and Customs [2007] FCAFC 123; (2007) 160 FCR 115 in which Emmett J said:[at 14]…
On the basis that the primary Judge failed to consider that the Attorney-General could be compelled to exercise it, which is supported by the words stated by Emmett J at para 14, namely "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" [emphasis added] because clearly not considering the COVID-19 pandemic in the USA, on any reasonable view, cannot be considered exercising the discretion in "good faith", moreover, if the Attorney-General was making as 22 Decision today, he would have to consider the effect of COVID-19 in making a surrender decision not only under s 22(3)(f) but also under Article V of the Treaty (required to be considered under s 22(3)(e) of the Extradition Act 1988 (Cth) as Article V of the Treaty requires that the Attorney-General form the opinion or the requisite state of satisfaction that surrender of the person is "proper to do so" in the circumstances of the individual case, so clearly COVID-19 would have to be considered in exercising the discretion under s 22, and therefore not only be compelled to exercise it, but also to exercise it in the Appellant's favour, particularly as the Act and Treaty envisage refusal of Australian citizens in certain circumstances and provides an option for the person to be prosecuted in Australia, namely Article V(l) and (2) of the USA/Australia Treaty. The primary Judge erred in not referring or considering the issue of Article V of the Treaty which the Appellant had brought to the primary Judge's attention. Clearly, the Appellant's claim for Proposed Order 9 was reasonably arguable.
36. The primary Judge erred under the subheading "the applicant's 6 January 2021 application to reopen" - "Consideration of reopening with respect to the 2PFAOA" at paragraph [192] by finding that:
As counsel for the respondents submitted, the matters which the applicant now says will compel the Attorney-General to revoke the s 22 Decision are not matters which the Act requires to be considered in the making of a surrender determination. That being so, even if it be the case that the Attorney-General is obliged to make his decision on a correct understanding of the law, it is difficult to see how the matters on which the applicant relies could compel the revocation of an earlier surrender determination. That is especially so in the context that the Act includes s 26(5) and (6).
On the basis that it is plainly not difficult to see how the matters on which the Appellant relies, namely COVID-19, the most deadly pandemic in known history, could without question compel the revocation of an earlier surrender determination. Moreover, again the primary Judge has misconstrued s 26(5) and (6) and attempted to bolster a weak judgment with irrelevant sections of the Act, that have nothing whatsoever to do with the inherent power of the Attorney-General to revoke, reconsider and remake an existing s 22 Decision.
43. The primary Judge further erred under the subheading "A second application to reopen" at paragraph [206] by finding that:
There comes a time when the interests of justice require finality. That time has been reached
On the basis that clearly the interests of justice required the reopening and the issue of the Attorney-General's failure to revoke, reconsider and remake the existing s 22 Decision, particularly in circumstances where world is in the middle of the COVID-19 pandemic and the USA is the worst affected country on the planet, and where the first law Officer of the Commonwealth has misunderstood his power under the Extradition Act 1988 (Cth), and should be compelled to revoke, reconsider and remake the existing s 22 Decision as an Indigenous Australian's life and/or health is unnecessarily at risk.
93 At the hearing Mr Matson submitted that there was a live question before the Court as to whether the Attorney-General has power under s 22 of the Extradition Act to reconsider, revoke and remake a surrender determination. He spoke at length in this regard. His oral submissions included the following:
… Now, that is a question which has not been considered by the High Court or by the Full Court before, notwithstanding the fact that there has been a High Court authority referring to cases where the Attorney-General has previously made such a decision. So notwithstanding that Mr del Villar says that the Act doesn't indicate or support any assertion that there is such a power, this is a question of law which warrants the dismissal of the summary application, because it is an important question of law. Extradition is certainly in the public interest, at this point in time, no doubt because of some of the cases of which we would all be aware, including that of Julian Assange, etcetera.
There is a question as to whether or not the Minister has such a power, and that is - if we look at the draft notice of appeal, the majority of the grounds that are raised are specifically in relation to that issue. And it's my submission that - without going into a full-blown argument on the merits of those questions - of those grounds of appeal - in circumstances where White J found that the principle of Anshun estoppel prohibited me raising any arguments in respect of COVID-19, the issue of whether or not the Minister himself misunderstood or misconceived or misapprehended his powers under the Act - that evidence and that argument was only ceded after the decision of Rangiah J had been handed down.
And it's my submission that the principles of Anshun estoppel surely can't apply to an argument that has only - can only be conceded and be ceded after the decision of Rangiah J was handed down. So it's, in my view, a situation where COVID-19 was an escalating issue. I did seek a stay before Rangiah J to allow the Attorney-General - the former Attorney-General, the Honourable Christian Porter - I sought a stay to allow him the opportunity to make his decision. Rangiah J, in his wisdom, declined that stay application and proceeded to judgment. Now, post that judgment, a letter was received by me by the Honourable Christian Porter, which I have right here, and he clearly says that he has no power to - I appreciate - he appreciates the time that I've taken to bring this matter to his attention:
…however, I do not have the power to remake or reconsider a surrender determination made under section 22 of the Extradition Act.
Now, it was even in White Js finding that he found that he likely - that Christian Porter likely erroneously viewed his powers. Now, in circumstances where the highest legal officer of the Commonwealth erroneously viewed his powers under the Act is a question of law - a real issue of law that needs to be resolved and warrants the dismissal of this summary application.
(transcript pp 16-17)
94 Mr Matson continued:
Well, the error was - and, as I said, these are canvassed across a number of grounds in the draft notice of appeal - but if, for example, I can refer you to ground 20 - and it may be helpful if I refer to the paragraph of White J - paragraph 132 - where he said:
In my view, the claims which the applicant now makes in reliance of the COVID-19 pandemic are claims to which an Anshun estoppel applies. As I have noted, the applicant had made the execution of the surrender warrant an issue in action QUD107/2019.
That's the matter of Rangiah J:
He had relied on the COVID-19 pandemic for some purposes in that litigation. His reliance on the COVID-19 pandemic is part of the basis upon which he seeks now to avoid the execution of the warrant. The relief which the applicant now seeks is inconsistent with the dismissal of his application for like relief in action QUD107/2019, and it should be held that his present claim is so relevant to the subject matter of action QUD107/2019 that it was unreasonable for the applicant not to have relied on the matter in those proceedings. There has to be an end to litigation. Claims or claims are not to be saved up for later litigation in which the same relief is sought. It is unreasonable for the applicant to seek to pursue in successive proceedings different bases for the same substantive relief.
Now, his Honour erred there on the basis that the issue of COVID-19 in the USA and the Attorney-General's decision to decline to revoke, reconsider or remake the existing section surrender decision only came to light after the decision of Rangiah J had been handed down. So the issue of COVID-19 in the USA and the Attorney-General's decision to decline to revoke, reconsider and remake the existing section 22 surrender decision because of COVID-19 was not saved up. It was appropriately raised before White J as soon as was reasonably practical in light of my incarceration and the intervening Christmas break period when I received the letter from the Honourable Christian Porter advising he has no power to reconsider or remake a section 22 determination under the Extradition Act. I was entitled to have the proceeding reopened because of the fresh evidence of the Attorney-General's letter and because of the fact that the Attorney-General incorrectly viewed and misapprehended his power to reconsider or remake a section 22 determination.
And it's my submission, your Honour, that the Honourable Christian Porter, by erroneous viewing his power, never actually turned his mind to the question of whether or not COVID-19 would warrant further representations or a reconsideration of the existing surrender decision, so he never turned his mind to the question, because he viewed that he had no power. So he made the decision that he had no power to reconsider, so he never actually turned his mind to the question, and it's my submission that that evidence of the letter from Mr Porter and the development of this failure to properly consider what can only be considered a very serious issue, namely, a global pandemic, which - I understand that Mr del Villar has previously made the submission that, "Well, COVID-19 - if it had have existed at the time of the original surrender decision, it wouldn't have had to have been considered. There was no - there's no basis in the legislation to support that there was an obligation upon the Minister to consider COVID-19." Now, in my submission, that is a ridiculous submission. He relies - and White J himself refers to the case of Rivera as authority for the proposition that - and I will just work my way through to that case, your Honour.
(transcript pp 18-19)
95 Mr Matson then referred to draft ground of appeal 35 and submitted:
Now it's those final words, your Honour, that the matter is:
provided that the discretion is exercised in good faith and consistently with the objects, scope and purpose of the Act.
Which I wish to emphasise and labour because it is my submission that if for example a section 22 decision was to be made today that for the discretion to be exercised in good faith and consistent with the objects, and purpose, and scope of the Act that there would have to be advice given in respect of COVID-19 and any associated risks and that is not just in what would be considered under section 22(3)(f) which was specifically the unfettered discretion that was referred to there in the case of Rivera. But we also have Article V of the Treaty.
Now, there has been Full Court discussions about Article V of the Treaty and I'm going to refer your Honour to the case of Lobban v Minister for Justice, that's L-o-b-b-a-n v Minister for Justice [2016] FCAFC 109 at paragraphs 83 to 106. Now, your Honour, through those paragraphs Charlesworth J she does a very, very, what I would consider accurate appraisal or overview of Article V of the Treaty and its obligations and it's my submission that the object, scope, and purpose of the Act are to ensure that the Treaty requirements are upheld and accorded to by both the USA and Australia.
And it's my submission, your Honour, that if you look at the wording of Article V of the Treaty, it says at paragraph 1 of Article V, that:
Neither of the contracting parties shall be bound to deliver up its own nationals under this Treaty but the executive authority of each contracting power shall have the power to deliver them up if in its discretion is considers that it is proper to do so.
Now it's those words "proper to do so," which is discussed by Charlesworth J there in the case of Lobban and she is of the opinion that there is a correlating power under section 22(3)(f) where if there was a circumstance where the interests of the person were affected that that would have to be considered. And it's my submission that it would be an unreasonable exercise of the discretion if proper consideration isn't given to matters that would have a direct impact on the person and I couldn't personally think of a more poignant example of an example of where there is a circumstance that would warrant, circumstances that would warrant such consideration under Article V and under section 22(3)(f) as a global pandemic, which was absolutely ripping through the United States at that point in time when the Honourable Christian Porter declined to reconsider or revoke.
Now, through those paragraphs, your Honour, it's my submission that Justice White erred in just accepting the submission by Mr Del Villar that simply because in Rivera they had found that any matters could be taken into account or no matter, but so that was an error there by White J by finding, by just accepting that submission. Because as I have said that in circumstances of a global pandemic, it could not be said that the decision could be exercised in good faith both under Article V of the Treaty and under section 22 that you could say that the process of reasoning to make it a reasonable exercise of the discretion without any advice on the COVID-19 pandemic and its very real risks, it's my submission that there was an obligation that it be reconsidered in those circumstances.
And as I said, I don't believe that, I think it's clear the available inference is that because Justice - because Christian Porter was of the opinion that he had no power to make this reconsideration or remake the decision, that he actually never turned his mind to this absolutely critical question which was put before him and I believe that as I said, that if a surrender decision, if COVID-19 existed when the surrender decision was made in my case there would be an obligation for there to be legal advice and medical advice as to the associated risks both under Article V of the Treaty and under section 22(3)(f), the general discretion.
And I will just quickly refer to paragraph 59 of the legal advice that was put before the Minister in my surrender decision process.
…
MR MATSON: Maybe Mr del Villar - but the point I try to labour here, your Honour, is that under the advice provided at article V of the treaty, it says here that:
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 police position that Australia shares with other like-minded countries, such as the United Kingdom, Canada and the US, and the department does not consider that there is any particular circumstance in respect to Mr Matson which would cause a deviation from this policy.
Now, clearly, this advice was provided prior to the pandemic, but the point that I make is that if the COVID pandemic had existed at that time, or if the surrender decision was to be made today, there would almost certainly, in my submission, have to be some advice and it would be considered a circumstance that would warrant Australia taking a diversion from that long-standing policy position. Because the terms of article V of the treaty are very clear, it says:
That the contracting party shall have the power to deliver them up if, in its discretion, it considers that it is proper to do so.
And in circumstances where we have a global pandemic and where there is the availability to resolve these matters via video link, etcetera, it is a circumstance where the question becomes was it proper to do so? And this was a significant development, it was brought to the Attorney-General's attention, Rangiah J handed his decision down. So Christian Porter's misapprehension of the law, as the principal legal officer of the Commonwealth ..... that. So we need to understand that Rangiah J didn't ever consider whether or not he had the power to revoke or reconsider. So Mr del Villar's argument about res judicata, that falls away. It wasn't previously - there has been no previous decision made by any court on this question. The principles of Anshun estoppel, they fall away, with respect, Mr del Villar, because there was no way for me to raise this issue before Rangiah J.
…
MR MATSON: The error of Mr Porter happened after Rangiah's decision, so Anshun estoppel falls away. And as far as the issue of abuse of process, he - the submissions of the respondent are that the doctrine of abuse of process is inherently broader than res judicata or estoppel, it's capable of application in any circumstance in which the use of the court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. Well, in response to that, I would say that these are very important legal questions which have been brought before the court and I don't see in any way in which it would be unjustifiably oppressive or bring the administration of justice into disrepute for the Full Court to consider whether or not there was an obligation for Mr Porter to properly consider his powers under the Act and consider whether or not the COVID-19 pandemic warranted or obliged a reconsideration and revocation of the existing surrender decision.
And going further or a little bit deeper into the submissions of the respondent in respect of abuse of process, Mr del Villar says that:
Thus, making a claim or raising an issue which ought reasonably to have been made or raised for determination in an earlier proceeding can constitute an abuse of process, even if the earlier proceeding might not have given rise to an estoppel.
Well, once again, the submission there is that I should have raised this issue before Rangiah J; that wasn't possible. This letter is dated December of 2020 and the decision of Rangiah was handed down in October. So, further, it's an abuse of process, says Mr Del Villar:
…that to litigate anew a case which has already been disposed of by earlier proceedings.
Well, once again, this issue has not been considered by Rangiah J, it was not considered by White J and it's my submission that this is a very important question of law which is warranted to dismiss this summary application, which I believe is vexatious, and it should be considered by the appeals court…
(transcript pp 21-24)
96 Addressing these submissions, the respondents submitted in summary:
Mr Matson's submissions should be understood in light of the comments of the primary Judge at [182]-[192];
Mr Matson's assertion that a decision made by the Attorney-General in February 2019 was somehow invalidated by a failure on the part of the Attorney-General to later reconsider that decision in December 2020 is simply implausible. There is no textual justification for that view;
even if the Attorney-General had a power to reconsider or revoke the relevant decision, the existence of that power could not affect the validity of the original surrender decision; and
the Minister is given a wide discretion by the Extradition Act to make surrender determinations pursuant to s 22 of that Act, which discretion is unfettered.
97 Section 22 of the Extradition Act materially provides:
…
(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.
(emphasis added)
98 The unfettered discretion of the Attorney-General in exercising powers under s 22 was recognised in such cases as Rivera v Minister for Justice and Customs [2007] FCAFC 123, (2007) 160 FCR 115 where Emmett J (with whom Conti J agreed) observed:
14. Finally, under s 22(3)(f), the Minister must consider that the person should be surrendered in relation to the offence. 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.
(emphasis added)
99 This statement was subsequently adopted by Middleton and Wigney JJ in Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156 where their Honours said:
151. It follows that the Minister is not bound to take any particular matter into account in the exercise of his general discretion in s 22(3)(f) of the Act. The fact that a particular matter is the subject of a submission or representation does not mean that the Minister is bound to consider it. It is entirely a matter for the Minister to decide whether to take any such submission into account and, if so, in what way: Brock v Minister for Home Affairs [2010] FCA 1301 at [63] (Foster J - an appeal from Foster J was dismissed). There is no obligation to accept any particular submission: Foster v Attorney General (Cth) (1998) 158 ALR 394 at 413 (Spender J - an appeal from Spender J was allowed but in relation to an unrelated issue). On the other hand, if the Minister does take a submission into account, it does not mean that it thereby becomes a mandatory consideration.
(emphasis added)
100 Fundamentally, Mr Matson's contention in all of these draft grounds of appeal is that the Attorney-General could, and should, have revisited and then revoked the s 22 surrender determination concerning Mr Matson (because of the onset of the COVID-19 pandemic in 2020), and any view taken by the Attorney-General of lack of power to do so was wrong. Mr Matson expands on this contention by claiming that:
all forms of estoppel referable to the decision of Rangiah J are inapplicable, because the refusal of the Attorney-General to revoke the s 22 surrender determination took place after the decision of Rangiah J;
the Attorney-General erred in determining that he could not revoke the s 22 surrender determination;
the Attorney-General was morally and legally obliged to revoke the s 22 surrender determination;
the Attorney-General was obliged to consider the implications of art V of the Treaty in determining whether to revoke the s 22 surrender determination; and
the primary Judge erred in disregarding the importance of the ICCPR to the Attorney-General's s 22 surrender determination.
101 The primary Judge noted at [185] that Mr Matson had contended that the Attorney-General was mistaken in assuming there was no power to remake or reconsider a surrender determination made under s 22 of the Extradition Act. At [188] his Honour observed that, in light of the decision of the High Court in Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 - where the Minister had, following a reduction in the number of charges for which the extradition was sought, revoked the issue of an earlier surrender warrant - it was at least reasonably arguable that the Attorney‑General was incorrect in that view of his powers. However, the primary Judge concluded that it was not in the interests of justice to allow Mr Matson to reopen his case with respect to the 2PFAOA because:
189. First, it is not reasonably arguable that any failure by the Attorney‑General in December 2020 to reconsider or revoke the s 22 Decision could have the effect of rendering "unlawful and invalid" the s 22 Decision made by the Acting Attorney‑General, Mr Hunt MP, on 1 February 2019, as the applicant wishes to claim in Proposed Order 8. Plainly, such a claim has no reasonable prospects of success.
190. Secondly, having regard to the matters to which I referred in relation to the applicant's existing claims concerning the validity of the Act, it is not reasonably arguable that a lack of power by the Attorney‑General to reconsider and revoke a surrender decision (if that be the case) could have the effect of rendering invalid the Act, Pt 2 of the Act, or even s 22 of the Act. The circumstance that the applicant has identified a different "peg" on which to hang his submissions concerning implied constitutional rights does not alter the position stated earlier. The matter contained in the proposed [7(e)] cannot have the effect of making the claim for Proposed Order 7 reasonably arguable.
191. I also consider that the claim for Proposed Order 9 is not reasonably arguable. Even if the Attorney‑General does have a power to reconsider and revoke a s 22 decision, the Attorney‑General cannot be compelled to exercise it, let alone to exercise it in the applicant's favour. In this regard, counsel for the respondents referred to Rivera v Minister for Justice and Customs …
192. As counsel for the respondents submitted, the matters which the applicant now says will compel the Attorney‑General to revoke the s 22 Decision are not matters which the Act requires to be considered in the making of a surrender determination. That being so, even if it be the case that the Attorney‑General is obliged to make his decision on a correct understanding of the law, it is difficult to see how the matters on which the applicant relies could compel the revocation of an earlier surrender determination. That is especially so in the context that the Act includes s 26(5) and (6).
102 Further, his Honour earlier concluded at [120] that:
It is not reasonably arguable that the COVID‑19 pandemic could have the effect of rendering invalid any of the steps in relation to the applicant's extradition taken before its onset. That is to say, it could not have had the effect of rendering invalid the steps taken in 2015, 2016 and 2019 in relation to the applicant's extradition, before the pandemic had even arisen. However, the applicant sought to rely on it as a changed circumstance which would make the enforcement of the Surrender Warrant unlawful.
103 Turning now to Mr Matson's draft grounds of appeal and submissions, I make the following observations.
104 First, as I have already observed, Rivera and Snedden are authority that the Attorney's discretion is unfettered and he or she 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 Extradition Act.
105 Second, while it is possible in light of Foster that the Attorney could, if he or she chose, reconsider and revoke a s 22 surrender determination, Rivera and Snedden are also authority that the Attorney-General cannot be compelled to exercise that power.
106 Third, as a matter of construction the Extradition Act does not impose any requirement on the part of the Attorney to revisit his or her surrender determination when circumstances change.
107 That this is so is illustrated by the terms of s 26(6)(a) of the Extradition Act. Section 26(5) of the Extradition Act provides as a general proposition that a person shall not be retained in custody in Australia more than 2 months after the day on which the surrender decision is made. However where, for example, after a surrender decision is made (but before the actual surrender of the person takes place) circumstances change such that surrender could be dangerous to the life or prejudicial to the health of the person, s 26(6) of the Extradition Act nonetheless contemplates that the person should not be surrendered despite the provisions of s 26(5). The change in circumstances does not compel the Attorney-General or relevant Minister to reconsider the surrender decision itself.
108 That this is also the case in respect of the onset of the COVID-19 pandemic was made clear by the Full Court in Reyes v United States of America [2020] FCAFC 149.
109 Fourth, the decision Mr Matson sought revoked, reconsidered and remade was made more than one year prior to the emergence of the COVID-19 pandemic. It was not an issue for the Attorney-General to take into account in making the original surrender decision. It similarly follows that to the extent Mr Matson claims that, if the Attorney-General was making the surrender determination "today", the Attorney-General would have to consider the effect of COVID-19 under art V of the Treaty, that argument must be misconceived. In my view the judgment of Charlesworth J in Lobban v Minister for Justice [2016] FCAFC 109 is of no assistance to Mr Matson.
110 Fifth, to the extent that, in his draft grounds of appeal, Mr Matson relies on the ICCPR in his criticism of the s 22 surrender determination, that reliance is misplaced. It is uncontroversial that unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [101]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 at [59]; AB v Minister for Immigration and Citizenship [2007] FCA 910; at [22]; Snedden at [147]. The Attorney-General was simply not required to have regard to the ICCPR in making the surrender determination regarding Mr Matson.
111 Sixth, the High Court has held that the Extradition Act is a valid law with respect to external affairs: Vasiljkovic at [36] (Gleeson CJ), [87]-[88] (Gummow and Hayne JJ), [222] (Heydon J). To the extent that Mr Matson seeks a declaration that Part II of the Extradition Act and the Extradition (United States of America) Regulations are invalid under the Constitution, his application has no prospect of success.
112 The primary Judge was not satisfied that the COVID-19 pandemic could have had the effect of rendering invalid any of the steps taken in relation to Mr Matson's extradition before the onset of the pandemic, or rendering unlawful the surrender decision itself. Further, his Honour was satisfied that the Attorney-General could not be compelled to exercise the power to reconsider and revoke a s 22 surrender decision, including the decision concerning Mr Matson.
113 These findings were plainly correct. Draft grounds of appeal 16, 19, 20, 21, 26, 32, 33, 34, 35, 36, 43 clearly have no prospect of success.