Matson v The Attorney-General of the Commonwealth of Australia

1. The interlocutory application dated 8 July 2022 be dismissed.
2. The appellant pay the respondent's costs of the interlocutory application.
3. The appellant's attendance pursuant to order 2 made on 15 July 2022 is no longer required. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NICHOLAS J 1 Before the Court is an interlocutory application filed by the appellant and dated 8 July 2022 seeking a stay of a surrender warrant issued on 1 February 2019 under s 23 of the Extradition Act 1988 (Cth) ("the Act") together with an interlocutory injunction restraining the respondent from giving effect to the surrender determination made under s 22 of the Act on the same date. The appellant also seeks an order that he be admitted to bail. 2 The interlocutory relief sought by the appellant is in aid of an appeal that the appellant has commenced against a judgment of the primary judge (Logan J) made on 24 June 2022: Matson v Attorney-General [2022] FCA 790. The appellant's interlocutory application has been listed for hearing on an urgent basis in circumstances where the respondent has advised that the appellant's extradition to the United States of America is imminent. The evidence before the Court consists of an affidavit made by the appellant on 8 July 2022 and an affidavit of Madeline King, an Australian Government Solicitor lawyer, made on 18 July 2022. 3 The appellant has been held in custody since October 2015 after he was arrested following receipt of a request from the United States for his extradition on various charges. On 1 February 2019 the then Acting Attorney-General, the Hon. Greg Hunt MP, made a determination under s 22(2) of the Act that the appellant be surrendered to the United States and issued a warrant under s 23 of the Act for the appellant's surrender. 4 The proceeding from which the appeal is brought concerned the respondent's response to the appellant's written request dated 11 August 2020 that the respondent revoke the surrender determination made on 1 February 2019. The response from the then Attorney-General, the Hon Christian Porter QC MP, is reproduced in the primary judge's reasons. His Honour said: at [7]: The Attorney-General did not choose not to consider Mr Matson's letter of 11 August 2020. He did consider it. In December 2020, he replied to Mr Matson in terms which should be set out in full: Thank you for your letter of 11 August 2020 in which you ask me to reconsider the determination made by the Acting Attorney-General, the Honourable Greg Hunt MP, to surrender you to the United States of America. I appreciate the time you have taken to bring this matter to my attention. However, I do not have the power to remake or reconsider a surrender determination made under section 22 of the Extradition Act 1988 (Cth). I understand that you sought judicial review of the Acting Attorney-General's surrender determination. I further understand that you made several interlocutory applications, and that the matters outlined in your letter have been raised during the course of those proceedings. As you are aware, on 28 October 2020, the Federal Court of Australia dismissed your applications. A further matter remains before the Federal Court. I am conscious that this matter is distressing for you and your family and I am acutely aware of the seriousness of the situation for you. Thank you for raising this matter with me. [emphasis added] 5 The primary judge held that the respondent made an error of law in concluding that he did not have power to revoke a surrender determination made under s 22 of the Act in conjunction with a decision to revoke a surrender warrant. His Honour made a declaration to the effect that the respondent had power to revoke a surrender determination in conjunction with a decision to revoke a surrender warrant, but that the respondent was not under any obligation to consider whether or not to exercise that power. His Honour also accepted an undertaking proffered by the respondent to the Court that the respondent would not execute the surrender warrant until such time as the respondent had reconsidered the appellant's letter of 11 August 2020 in light of the declaration. 6 The appellant's notice of appeal contains 10 grounds. A number of these relate to the refusal of the primary judge to permit the appellant to reopen his case after judgment had been delivered. However, it is apparent that the appellant's fundamental contention is that the former Attorney-General's advice that he would not consider the appellant's submission due to what he considered to be a lack of power was, in substance and effect, a decision to decline to exercise the power to revoke the surrender decision. The appellant contends that this is a decision that the respondent can be required by an order of the Court to remake and that the primary judge should have so ordered. Further, the appellant contends that in any remaking of that decision, the respondent will be required to act reasonably, according to law (including by affording the appellant procedural fairness), and according to reason, and that the order requiring the respondent to remake his decision should so provide. In short, the orders sought in the appellant's notice of appeal are directed to compelling the respondent to consider whether or not to exercise the revocation power reasonably and according to law. 7 The authorities referred to by the primary judge included the decision of the Full Court in Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82 ("Snedden") where Middleton and Wigney JJ said at [150]-[151]: 150 In Rivera v Minister for Justice and Customs (2007) 160 FCR 115, Emmett J (with whom Conti J agreed) described the general discretion in s 22(3)(f) in the following terms (at [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. 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. 8 Although made in the context of a determination under s 22(3)(f) of the Act that a person should be surrendered, those observations necessarily apply to any consideration by the respondent of any submission that such a determination be revoked. The appeal brought by the appellant amounts to an attempt by the appellant to obtain orders requiring the respondent to consider the appellant's revocation request which, according to Snedden, the respondent is not obliged to do. 9 There was a significant development on 7 July 2022 when the current Attorney-General, the Hon Mark Dreyfus QC MP, wrote to the appellant and, after referring to the orders made by Logan J on 24 June 2022, informed the appellant that, having read the appellant's letter of 11 August 2020, he would not exercise the power to revoke either the surrender determination made by the Acting Attorney-General on 1 February 2019 or the surrender warrant issued on the same date. 10 Various other proceedings have been brought by the appellant with a view to resisting his extradition to the United States. They include proceedings in this Court for judicial review of the surrender determination and the decision to issue the surrender warrant dismissed by Rangiah J in October 2020 (Matson v Attorney-General [2020] FCA 1558), and another proceeding brought by the appellant which was summarily dismissed by White J in March 2021 (Matson v Attorney-General (Cth) [2021] FCA 161). The appellant's appeal against the judgment of Rangiah J was dismissed in November 2021 due to the appellant's non-compliance with procedural orders. An application for leave to appeal the judgment of White J was refused in March 2022 (Matson v Attorney-General (No 2) [2022] FCA 213). In April 2022, an application brought by the appellant to reinstate his appeal from Rangiah J was dismissed primarily on the basis that his proposed grounds of appeal had no merit (Matson v Attorney General (Cth) [2022] FCA 461). 11 Most recently, a proceeding brought by the appellant in the original jurisdiction of the High Court (B20/2022) was dismissed by Gageler J on the basis that the principal application disclosed no basis for the relief sought: Matson v The Attorney-General of the Commonwealth of Australia [2022] HCATrans 117. The relief sought in that proceeding was directed to quashing and preventing the enforcement of the surrender determination and surrender warrant and to compel the respondent to remake the decisions of 1 February 2019. An application for leave to appeal his Honour's judgment was dismissed by Edelman and Gleeson JJ on 14 July 2022: Matson v The Attorney-General of the Commonwealth of Australia [2022] HCATrans 120. 12 Another proceeding brought by the appellant in the original jurisdiction of the High Court (B33/2022) relates to the recent letter of 7 July 2022 in which the Attorney-General advised that he will not exercise the power to revoke the surrender determination made on 1 February 2019 or the surrender warrant issued on the same date. The originating application filed in the High Court in that proceeding seeks to (inter alia) challenge the validity of the Attorney General's action and to compel him to reconsider the appellant's request that he revoke the surrender determination and the surrender warrant. An interlocutory application brought by the appellant in that proceeding for an order suspending the surrender warrant and to restrain any person from executing it was refused by Edelman and Gleeson JJ on 14 July 2022 on the basis that the validity of the surrender warrant and the surrender determination were not in issue in that proceeding: Matson v The Attorney-General of the Commonwealth of Australia [2022] HCATrans 120. 13 In the proceeding before the primary judge now the subject of the appeal, there was never any issue as to the validity of the surrender decision or surrender warrant. Those matters were in issue in the proceeding heard by Gageler J in the High Court. However, in light of his Honour's judgment, and the outcome of the application for leave to appeal from it, it is no longer open to the appellant to challenge the validity of either the surrender decision or the surrender warrant: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [22]; Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589 at 598. There is therefore no basis for making any order staying the surrender warrant or restraining any person from executing it. With regard to the appellant's appeal from the decision of Logan J, it would appear to have been overtaken by events and does not provide any arguable foundation for the interlocutory relief now sought by the appellant. 14 Finally, in relation to the question of bail, the primary Judge expressed the view that the Court does not have power to order the appellant's release on bail given the existence of the surrender warrant. Even if I was satisfied that there was power to order the appellant's release on bail, I would not do so in circumstances where I have been told by counsel for the respondent that the appellant is scheduled to be extradited to the United States prior to 28 July 2022. 15 The interlocutory application will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.