The respondent's grounds at first instance
87 On 4 December 2009, the respondent commenced the proceeding from which the present appeal arises. He sought certiorari, and corresponding declarations, with respect to the Attorney-General's notice of 8 July 2005 under s 16 of the Act, the Magistrate's decision of 20 August 2008 under s 19 of the Act and the Minister's determination of 12 November 2009 under s 22 of the Act. For the purpose of the challenge to the s 19 decision, the respondent joined the Magistrate to his proceeding, and she is now the second respondent in the present appeal. Also a respondent to the initiating proceeding, and joined as the third respondent to the present appeal, was the Western Australian Officer in Charge, Hakea Prison, but nothing further needs to be said in relation to this party.
88 The respondent's case at first instance was based on 13 specific grounds, each of which was particularised in terms that were both factual and argumentative. The primary Judge's reasons were organised around these grounds, and the parties' cases on appeal have been likewise. It is convenient, then, to lay out the nature of the respondent's case, and the content of his Honour's reasons, by reference to the respondent's grounds.
89 Omitting Grounds 7 and 8, which were decided adversely to the respondent below and as to which he makes no contention in the present appeal, the respondent's grounds were as follows:
1. The Second Respondent, acting through his delegate, the Minister for Justice and Customs of the Commonwealth, erred in law and fact and misdirected himself on a fundamental matter regarding whether the Applicant was an "extraditable person", and made a jurisdictional error, in deciding to issue, and issuing, pursuant to s.16 of the Act, a Notice of Receipt of Extradition Request (the s.16 Notice) on 8 July 2005.
Particulars
(a) According to information provided on 17 March 2009 by the leader of the Military Panel of the Budapest Municipal Court ("Military Panel") and accepted as correct by the Hungarian Government, the extradition of the Applicant is only sought for the purposes of preliminary investigation about his involvement in the alleged war crime, and there is no indictment currently before the Panel charging him with the alleged offence.
(b) As the proceedings instituted in the Military Panel are essentially investigative and preliminary and not at a more advanced state involving the laying of any charge, the Applicant is not a person who is "accused" (within the meaning of s.6(a) of the Act) of having committed the alleged offence of war crime in relation to which the Republic of Hungary's request for extradition was made.
(c) The statutory requirement that an "extraditable person" be "accused" of a relevant extradition offence is not met by equating it with expressions such as "wanted for prosecution", or being "suspected of committing" the relevant offence.
(d) The Applicant therefore is not and never was an "extraditable person" within the meaning of, and for the purposes of, the Act.
(e) As the Applicant was not an "extraditable person" when the Extradition Request was made by the Republic of Hungary to the Australian Government, the Second Respondent should not have acted upon the Extradition Request by issuing the s.16 Notice. To do so was beyond his statutory power.
(f) The s.16 Notice was therefore unlawful and void.
2. The order made on 20 August 2008 by the Third Respondent, after conducting eligibility proceedings under s.19 of the Act, pursuant to s.19(9) of the Act, committing the Applicant to imprisonment in Western Australia, was beyond jurisdiction, unlawful and void.
Particulars
(a) Eligibility proceedings under s.19 of the Act cannot be conducted unless, as required by s.19(1)(b) of the Act, the Attorney-General has directed "a notice under s.16(1)" to a magistrate.
(b) By reason of the matters particularised in the preceding Ground, the s.16 Notice directed to the Third Respondent on 8 July 2005 by the Second Respondent, purportedly pursuant to s.16(1) of the Act, was unlawful and of no legal effect.
(c) Therefore the Applicant should not have been found to be an "eligible person", and the Third Respondent had no power or jurisdiction to conduct proceedings under s.19 of the Act, or to make the order, on 20 August 2008, pursuant to s.19(9) of the Act, committing the Applicant to prison.
3. The Minister (First Respondent) made an error of law and fact and misdirected himself on a fundamental matter regarding whether the Applicant was capable of being surrendered under the Act, and made a jurisdictional error, in finding that the Applicant was an "eligible person" within the meaning of s 19(2) of the Act, and for the purposes of s 22 of the Act in relation to an extradition offence of war crime established by s 165 of the Hungarian Criminal Code Act IV of 1978 in conjunction with s 11 para 5 of Prime Minister's-Decree No 81/1945 (II.5) ME on the Peoples Jurisdiction enacted by Act VII of 1945 amended and complemented by Decree No 1440/1945 (V.1.) ME ("war crime").
Particulars
(a) The Applicant repeats Particular 1(a).
(b) The Applicant repeats Particular 1(b).
(c) The Applicant repeats Particular 1(c).
(d) The Applicant repeats Particular 1(d).
(e) In apparently concluding that the Applicant satisfies the definition of an "extraditable person", and hence "eligible person", the Minister failed to have proper regard to the legal distinction between preliminary investigative process and the more advanced state of affairs where charges are laid or are imminent, and was inferentially misled to an incorrect understanding of the relevant legal concept of "accused" by the reference in Departmental Attachment C (para 262; also para 190) to the Australian High Court authority of Director of Public Prosecutions (Cth) & the Republic of Austria v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 which is cited for the proposition that extradition legislation must be construed so as to recognize differences between the common law and continental systems of criminal law, but omitting reference to the passage from Gummow J in Kainhofer (at [88]), cited in the Applicant's Supplementary Submission dated 26 October 2009, in which his Honour made the above relevant distinction is made. [sic]
(f) As the Applicant was not an "extraditable person" when the request for his extradition was made to the Australian Government, proceedings against him under the Act were and are contrary to the requirements of the Act and should not have been commenced, and he should not have been found to be an "eligible person" by the Magistrate for the purposes of sub-ss 19(2) and (9) of the Act.
(g) As the Applicant was incapable of being found to be an "eligible person" under sub-s 19(2) of the Act the Minister had no power to make a determination for his extradition under s 22 of the Act.
(h) In consequence, the Minister's determination that the Applicant should be surrendered for extradition is not authorised by law and is a nullity.
4. The Minister further erred in law and made a jurisdictional error, in determining that the Applicant was eligible to be surrendered under s 22 of the Act, in relation to a "qualifying extradition offence" of war crime, and that determination was not authorised by the Act and was a nullity.
Particulars
(a) By virtue of Article 2 paragraph 5(a) of the Extradition Treaty between Australia and the Republic of Hungary 1995 ("Extradition Treaty"), as incorporated into the Act under of s 11 of the Act and the Extradition (Republic of Hungary) Regulations 1997, the alleged war crime was not an offence under Hungarian municipal law at the time (8 November 1944) when the conduct constituting the offence is alleged to have occurred.
(b) "War crime" was not made an offence under the Hungarian Criminal Code until legislation of Hungary enacted by Decree No 81/1945 (1945 Decree) which was purportedly given retrospective effect in Hungary by s 1 of the 1945 Decree.
(c) Relative to extradition requests by the Republic of Hungary, the effect of Article 2 paragraph 5(a) of the Extradition Treaty is that conduct which was not a criminal offence under Hungarian law at the time the conduct occurred is not an "extradition offence", as defined by s 4 of the Act.
(d) Unlike other international instruments such as the European Convention on Human Rights 1950 (ECHR), the International Covenant on Civil and Political Rights 1966 (ICCPR) and the Rome Statute establishing the International Criminal Court (where non-retrospectivity clauses are qualified by an exception in the case of war crimes) the Extradition Treaty contains no such exception.
(e) The alleged offence is therefore not an "extradition offence", and is therefore not an offence in relation to which the Minister may, under s 22 of the Act, order that the Applicant be surrendered to Hungary.
5. The Minister erred in law, in failing to give proper, realistic and genuine consideration to whether, in the exercise of the discretion conferred by Article 3 paragraph 2(a) of the Extradition Treaty, he should refuse extradition, having regard to the fact that the Applicant is a national of Australia, and all other relevant factors. Alternatively, his decision not to refuse extradition was one which no Minister, acting reasonably and giving consideration to those facts could, in the proper exercise of his discretion, make.
Particulars
(a) The Minister had a duty, imposed by Paragraph 2(a) of Article 3, to give primary consideration to the fact that the Applicant is an Australian citizen and national, given that Hungary may request Australia to submit the case to competent authorities in Australia, to consider whether to prosecute the Applicant in Australia.
(b) The Minister fettered the exercise of his discretion and disabled himself from properly and genuinely considering its exercise and the factors relevant to it, purportedly on the ground of a long-standing "policy" that Australia will not refuse extradition on the basis of Australian citizenship alone.
(c) The Minister further fettered the exercise of his discretion by giving undue precedence to Australia's obligation, under the Extradition Treaty, to respond to the Republic of Hungary's extradition request, without having a balanced or any regard to Australia's other obligations and responsibilities under that Treaty to the Applicant, as an Australian citizen.
(d) In so doing, the Minister failed to take into account the fact that Australia has a primary obligation to afford diplomatic protection to the Applicant, as an Australian national, and to save him from undergoing foreign criminal procedures unnecessarily, if either a Hungarian request is made under Article 3 paragraph 2(a), or Australia of its own motion considers whether, as an Australian national resident in Australia, the Applicant can and should be prosecuted under Australian law for the alleged war crime.
(e) The Minister further failed to satisfy himself as to whether Australia or Hungary had primary responsibility for prosecuting the Applicant, given that the Applicant had ceased to be, by force of Hungarian law applicable in 1944-1945, an Hungarian national, having failed to return to Hungary in response to an official summons to do so.
(f) The Minister should have had regard and failed to have regard to the fact that Australia has a primary obligation to afford the Applicant diplomatic protection, to prevent any unnecessary or disproportionate distress and disruption that his extradition would occasion if removed from Australia; or to the question of whether, as an alternative to Hungarian proceedings, the Applicant might be investigated and (if thought appropriate) prosecuted for the alleged war crime under Australian war-crimes legislation.
5A. The First Respondent erred in law and fact and made a jurisdictional error in deciding that there was no basis for finding that the competent Australian prosecuting authorities, the Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions (CDPP), had not, within the meaning of, and for the purposes of Article 3(2)(b) of the Extradition Treaty, decided to refrain from prosecuting the Applicant for the alleged offence in respect of which extradition is sought, thereby failing to give relevant and proper consideration under section 22 of the Act to whether Australia as the Requested State should refuse to surrender the Applicant for extradition.
Particulars
(a) According to paragraphs 112, 116 and 117 of Departmental Attachment C the AFP, having accepted a referral concerning an allegation of a war crime, considered the possibility of prosecuting the Applicant for an offence under the War Crimes Act 1945 (Cth) and sought advice from the CDPP regarding whether such a prosecution could be initiated in Australia. Upon receiving advice from the CDPP that in the absence of any testimony from living witnesses to support the documentary evidence the CDPP was unable to conclude that there was a prima facie case to support a prosecution under the War Crimes Act, the AFP determined not to proceed further.
(b) Having regard to the exchange of information between the AFP and the CDPP and its outcome, there was in the circumstances an actual or constructive refraining by Australia's competent authorities from prosecuting the Applicant and Article 3(2)(b) of the Treaty was therefore engaged.
(c) The First Respondent wrongly took into account the view of the Department (paragraph 118 of Departmental Attachment C) that the decision of the AFP to take no further action did not constitute a "refraining" since it did not entail a positive decision not to prosecute the Applicant, thereby misdirecting himself on the legal meaning of "refrain" in Article 3(2)(b).
(d) By concluding that there had not been a relevant refraining, he failed to consider, as required by Article 3(2)(b), whether he should exercise his discretion, acting on behalf of Australia, to refuse the Hungarian Request and thereby committed a jurisdictional error.
6. The Minister further erred in law, misdirected himself on a fundamental matter regarding whether in the terms of Article 3 paragraph (2)(f) of the Extradition Treaty the Applicant's extradition would be unjust, oppressive, and incompatible with humanitarian considerations, failed to take into account relevant considerations which he was bound to consider, and failed to properly exercise his jurisdiction under s 22 of the Act.
Particulars
(a) The Minister failed to satisfy himself of the capacity of the Military Division to provide procedures consistent with Australia's and Hungary's international obligations under Article 14 of the ICCPR with its two protocols and other relevant instruments, to ensure a fair trial if the Military Division were to charge and prosecute the Applicant for the offence of war crime.
(b) By virtue of s 11 and sub-paragraphs 22(3)(e)(i), (ii), (iii) and (iv), and 22(3)(f) of the Act, the Minister is required to have regard to the considerations specified in Article 3 paragraph 2(f) of the Extradition Treaty, namely, whether in the relevant circumstances it would be unjust, oppressive, and incompatible with humanitarian considerations to extradite the Applicant.
(c) In issuing the international arrest warrant for the Applicant's extradition to Hungary, the Republic of Hungary relied on the minutes and records of statements made in criminal proceedings before the Hungarian People's Court in 1946-1947 by the defendants and various witnesses in the trials of a Captain Mader and Lieutenant Nagy, which apparently will be the foundation on which any prosecution of the Applicant will be based. (Departmental Attachment C, para 33).
(d) So far as is known (and it is not contradicted by the Republic of Hungary) the relevant prosecution witnesses, on whose statements the Hungarian military prosecution authorities will apparently rely, are either no longer alive or are not available for examination.
(e) The Applicant has made submissions to the Minister that, if the Hungarian military prosecution authorities intend to rely on documentary evidence of Captain Mader, Lieutenant Nagy, and other witnesses including Jozsef Monori, Pal Marko, Zoltan Imre, and Janos Mahr, the Minister must be satisfied that the Applicant will have an opportunity to confront and question the witnesses, as required by Article 6 of the ECHR and Article 14 of the ICCPR, failing which to extradite the Applicant to Hungary would be unjust and oppressive within the meaning of Article 3 paragraph 2(f) of the Extradition Treaty.
(f) The Minister has also failed to discharge his responsibility of requiring the Hungarian Government to satisfy him that the Applicant will not be subjected to an unfair and unjust trial.
(g) The Hungarian authorities have failed to give an assurance that statements recorded by the People's Court in 1946-1947, coerced by torture, including any by Lieutenant Nagy, would not be produced as evidence in proceedings before the Military Panel, contrary to Article 15 of the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 1984 (CAT)
(h) It is a fundamental requirement of a fair trial in accordance with the above international instruments that the Applicant should have the opportunity and ability to question the above-named witnesses as to whether their statements were voluntary or coerced by threats of torture, induced by promises of leniency, are consistent with other statements by relevant witnesses, or reliable and credible, particularly given that to a large extent the statements are those of alleged accomplices or based on hearsay.
(i) The Republic of Hungary has declined to provide any specific details about whether the named witnesses are alive and available to be called in any proceedings against the Applicant, failed to inform the Applicant or the Australian Government of any alternative procedures for the testing of the voluntariness, reliability, credibility and veracity of the statements of those witnesses, and has given the Minister no assurance as to how, the Military Panel would be able to provide fair procedures and a fair trial if it were to prosecute the Applicant.
(j) The Republic of Hungary has, further, refused and failed to inform the Applicant or the Minister how the Applicant would be able to have a fair trial in accordance with international standards, when he will be unable to access relevant official documentary evidence (destroyed in the time elapsed since 1944) about the movement of his unit of the Royal Hungarian Army that would enable him to establish that he was not in Budapest at the time of the commission of the alleged offence in Budapest.
(k) The Minister, in the absence of such information and assurances and without making any further enquiry, has made his determination that the Applicant should be surrendered for extradition, apparently because the Military Panel is bound by the provisions of the ECHR and ICCPR and that it is therefore not for the Australian Government to enquire into or make judgments about whether the Military Panel and its procedures will, in fact, be able to comply with the international standards for a fair trial (Departmental Attachment C paras 103, 219).
(l) In that regard, the Minister has been misled by the selective reference in the Departmental Attachment C (para 33, dot point 7 and para 190) to the decision of this Honourable Court in Mokbel v Attorney-General for the Commonwealth (2007) 162 FCA [sic - FCR] 278 at [58]-[59], said to be authority that in accordance with the principle of comity a degree of respect is to be accorded by a requested country to the laws and institutions of another country, but omitting reference to Snedden v Republic of Croatia [2009] FCA 30 (a decision of the Full Federal Court to which the Applicant referred in his Supplementary Submissions to the Minister dated 26 October 2009) in which the contrary proposition was stated, namely that Australian court may, in an appropriate case, determine that a country requesting the extradition of an Australian citizen cannot provide a fair and unbiased trial in the event of extradition, and if so, that extradition must be refused.
(m) The Minister, in accepting that "comity" prevents him from considering whether, having regard to the particular evidentiary problems presented by the non-availability of key witnesses, the procedures of the Military Tribunal are actually capable of affording the Applicant a just and fair trial in accordance with relevant international standards has fettered his discretion and abdicated his responsibility to address that question.
(n) The Minister has in that regard asked himself the wrong question: the issue is not whether the Military Division is capable of providing a fair trial because it is bound by the ECHR and ICCPR; it is whether the Hungarian authorities can provide assurances to the Australian Government as to how they can, in fact, afford a fair trial to the Applicant in accordance with the ECHR and ICCPR in all the circumstances.
(o) The Minister has further erred in law and taken into account an irrelevant consideration, namely, that if the Hungarian authorities and the Military Panel fail to comply with the relevant international standards, the Applicant could appeal pursuant to procedures open, under Hungarian law, with the ultimate prospect of appealing to the European Court of Human Rights, and has concluded that he therefore has no responsibility to satisfy himself, before making a decision to extradite, that the Applicant will be able to be afforded a fair trial, complying with the relevant international standards.
Particulars
(oa) Further, the statement in Departmental Attachment C, paragraph 202, that advice received from the Attorney-General's Department's Office of International Law (OIL) (which is summarised in unredacted form in paragraphs 204 and 205 of that Attachment) suggests that there is "no information that establishes that the Military Panel would not be capable of providing a fair trial", and in paragraph 204 that: "We are not aware of any information to suggest that Hungry does not propose or is unlikely to provide [the respondent] with a fair trial", is inconsistent with the highly qualified advice given by the OIL that for a trial to be fair the Military Panel could only have regard to documentary evidence that was unsupported by viva voce evidence so long as the documentary material was not the sole or decisive evidence.
(ob) The First Respondent has therefore acted on a legally incorrect view of the apparently unsupported documentary evidence on which the Republic of Hungary proposes to rely (if a trial were to be instituted), and consequently, in the special circumstances of this case, erred in failing to take into account the fact that Hungary has not been able to produce any relevant live witnesses whose testimony would allow testing of the 1940's documentary records, given that the records cannot, in accordance with international standards of fairness, constitute the sole or decisive evidence for the prosecution.
(p) Contrary to the statement in the Departmental Attachment C, para 210, (that there is no evidence to suggest that Hungary will not afford the Applicant the protections and rights contained in its procedures and practices) there is evidence that the Military Panel, when issuing the international arrest warrant relating to the Applicant in 2005, failed to consider whether the statements and records of the People's Court were capable of being used in any criminal proceedings consistently with the Republic of Hungary's obligations under the ECHR and ICCPR, or whether a prosecution could comply with the requirement of a fair trial according to the standards of the ECHR and ICCPR. The Minister has, in the result, failed to take into account a relevant consideration, namely, that the Military Panel has already failed to comply with the relevant international standards.
(q) The Minister, in relying on Departmental Attachment C, has apparently also been induced to misconceive the nature of the Applicant's submissions regarding the need to confront prosecution witnesses, given that there is objective evidence that the Hungarian prosecution authorities may be incapable of producing critical prosecution witnesses, whose evidence is proposed to be relied on.
(r) The Minister has also failed to have regard to a relevant factor, namely Australia's own international legal obligations under the ICCPR, irrespective of any other obligations of non-refoulement, not to surrender the Applicant, an Australian national, for extradition where there is objective evidence that he may not be afforded a fair trial, and a real risk that there will be a violation of Australia's international undertakings because of its failure to comply with Article 14 of the ICCPR.
….
9. The Minister erred in law, and committed jurisdictional error, by failing to take into account relevant considerations when considering whether, in accordance with Article 3 paragraph 2(f), it would be oppressive and incompatible with humanitarian considerations to surrender the Applicant for extradition, given his advanced age (88) and his ill health.
Particulars
(a) The Minister failed to give real and genuine consideration to whether,
(i) given the Applicant's age and medical condition, and
(ii) given the Hungarian Government's concession that the Applicant is only wanted in the first instance for investigation,
there are relatively more appropriate alternatives (which would give full force and effect to "humanitarian considerations") to surrendering him for extradition to Hungary, such as permitting the Hungarian authorities to conduct their enquiries in Australia, or, if requested by the Hungarian Government, asking the Australian prosecuting authorities to consider whether to charge the Applicant under the Commonwealth Criminal Code.
(b) The Minister further erred in evidently deciding to give greater effect to the fact that any anguish, stress and seriously adverse health impacts upon the Applicant resulting from his extradition, and possible lengthy incarceration in a foreign country, should be "balanced" against the seriousness of the offence and interest of the international community in having a suspected World War II criminal tried before Hungarian courts.
(c) In so doing, the Minister failed to take into account the fact that the Applicant is an Australian national who is entitled to the presumption of innocence, and that the relevant interests of the international community could, proportionately and appropriately, be satisfied by such alternatives.
10. The Minister has also committed a jurisdictional error by taking into account, in his reasoning process, an inaccurate and misleading impression created in Departmental Attachment C, para 214, to the effect that the Minister should have little, if any, regard to the fact that the Applicant would be disadvantaged in his defence, if he were to be charged, by the long passage of time, because the relevant Hungarian authorities were unaware of the Applicant's presence in Australia until brought to their attention in 2004 by the Simon Wiesenthal Centre (whereupon they responded quickly) and further, (impliedly) that this delay was due in part to the fact that the Applicant had changed his name from Steiner to Zentai, thus preventing the Hungarian authorities from seeking his arrest and extradition at an earlier date.
Particulars
(a) The Applicant changed his name from Steiner to Zentai prior to World War II and was officially known by that name by all relevant Hungarian authorities thereafter including, relevantly, in proceedings before the People's Court.
(b) Any delay in pursuing an investigation and prosecution of the Applicant for the alleged war crime cannot be attributed to the Applicant, who lived openly in Western Australia from 1950 under the name of Zentai, by which he had been known when he left Hungary.
(c) His presence in Western Australia was known in the 1980s to the family of Peter Balazs, the victim of the alleged war crime, who claim to have brought it to the attention of a person associated with the Simon Wiesenthal Centre, which was therefore in a position to inform Hungarian or Australian authorities of the Applicant's presence in Australia at that time.
(d) The Minister made a jurisdictional error by only taking into account (Departmental Attachment C paras 273-279) the fact that the Hungarian authorities have acted in good faith since 2004, without having regard to the earlier opportunities that the Hungarian Government could have had if Hungarian authorities or other informants and agencies had acted more diligently in the past, and by failing to take into account, and give proper weight to, the enormous prejudice to the Applicant occasioned by the delay.
(e) The Minister has, also, apparently taken into account, as a reason not to refuse surrender, the wrong and misleading statement of fact (Departmental Attachment C, para 275) that the Applicant "has lived under the false assumption that [he is] no longer wanted for prosecution".
11. For the reasons stated in the above grounds, the Minister's decision was so unreasonable that it went beyond his jurisdiction under s 22 of the Act and is a nullity and of no legal effect.
12. The Minister further erred in law, and failed to comply with a fundamental legal requirement, by refusing to provide to the Applicant a statement of his relevant findings and the reasons for his determination under s 22 of the Act, in consequence of which his determination is a nullity and of no legal effect.
Particulars
(a) Section 22 of the Act requires the Minister, in exercising his statutory discretion and powers, to make various findings and to be satisfied regarding matters specified in that section.
(b) By necessary implication, for the purpose of judicial review of his decision, if requested by the person subject to the order for extradition, the Minister must provide a statement of relevant findings and reasons.
(c) On 17 and 19 November 2009, the Applicant's solicitors requested the Attorney-General's Department to provide a statement of the Minister's reasons for decision. By letter dated 20 November 2009 the Department replied that no such statement would be provided.
(d) The refusal constitutes a failure to comply with the Act, and therefore of itself vitiates the Minister's decision, and is a ground for quashing it.
90 I shall describe how the primary Judge disposed of these grounds presently, but, in summary, his Honour upheld only Grounds 3, 4 and 9. In the present appeal, the appellants challenge those aspects of his Honour's judgment. The respondent has filed a Notice of Contention challenging his Honour's rejection of Grounds 5, 5A, 6, 10, 11 and 12. Although there is no challenge to his Honour's rejection of Grounds 1 and 2, for reasons which will appear, they had an important linkage with Ground 3, and have therefore been retained in the list set out in the previous paragraph.
91 Ground 1 was advanced in support of the respondent's challenge to the Attorney-General's notice under s 16 of the Act, and was based on the definition of "extraditable person" in s 6 of the Act. The respondent submitted that, when the relevant aspects of Hungarian criminal procedure were properly understood, he had not in fact been "accused" of anything, with the result that the Attorney-General could not properly have formed the opinion under s 16(2)(a)(i) of the Act that he was an "extraditable person".
92 The facts necessary to sustain Ground 1, on the respondent's case, were based in a response received to a series of written questions concerning Hungarian criminal law and procedure delivered to the Military Division of the Metropolitan Court by a relative of the respondent living in Hungary on 9 March 2009. The response came in the form of a letter from Brigadier General Dr Bela Varga, Leader of the Military Panel of the Metropolitan Court, dated 17 March 2009. As translated and put before the primary Judge, that response contained the following paragraph:
I inform you, that there is no criminal proceeding at present against Karoly Zentai before the Military Panel of the Metropolitan Court. The fact, that the court has issued through the Minister of Justice an international arrest warrant against the aforementioned means merely that sooner or later the aforementioned can be made available to the Budapest Military Prosecutor's Office to be heard in the matter, in the interest of the investigation. Following this, the Military Prosecutor's Office will decide on the basis of the available evidence whether or not to bring a charge against him. (The arrest warrant issued by the Court does not mean that the Court or even the Prosecutor's Office would see the perpetrator as guilty). Only when an indictment is brought before it, will the Military Panel of the Metropolitan Court proceed in the matter.
I should mention here that, in the (re-typed) extract corresponding to this paragraph which was placed before the Minister in Att C, the first sentence was rendered as: "… at present there is criminal proceeding against Charles Zentai before the Military Panel of the Metropolitan Court". The primary Judge did not mention this disconformity, and the respondent made nothing of it on appeal.
93 Having been advised of Dr Bela Varga's letter, Hungary provided the following response to the Attorney-General's department:
• The statements included in the letter of Brigadier-General Dr Bela Varga dated 17 March 2009 correspond with the facts of this case. The Hungarian criminal proceeding against [the respondent] is in the investigative phase and no indictment has been lodged so far and consequently there are no criminal proceedings pending before the Military Panel of the Metropolitan Court at present.
• Hungary's request for extradition is based on the international arrest warrant issued by the Military Panel of the Metropolitan Court dated 3 March 2005. That warrant indicates that there are current proceedings pending against [the respondent] before the Military Prosecutor's Office of Budapest under case No B.XXXII.51/2005.
• The request for extradition aims at enabling the criminal proceedings against [the respondent] to be carried out. If an indictment is lodged against him, those criminal proceedings will also involve him having to stand trial for the offence for which his extradition is sought.
• Accordingly to section 32(1) of the Act XXXVIII of 1996 on international legal assistance in criminal matters, if criminal proceedings must be conducted against an accused person who is not in Hungary and who may be extradited, an arrest warrant shall be issued by a court.
• Consequently, all international arrest warrants are issued by a judge, on the motion of a prosecutor during the investigative phase of the proceedings. The prosecutor considers all available data, information and evidence and determines whether it is sufficient to make a motion to the court for the issue of an arrest warrant, having satisfied himself that a well-founded submission is established. That motion includes all the facts of the case on which the arrest warrant is based. Based on these documents presented by the prosecutor, the court then decides whether to issue an international arrest warrant subject to the court itself being satisfied that a well-founded suspicion is established.
• Under continental law, criminal proceedings are started when a well-founded suspicion (probable cause) of committing an offence arises.
• In this case, the Military Panel of the Metropolitan Court considered the documents presented by the Prosecutor established the requisite well-founded suspicion and issued the international arrest warrant.
• The term "well-founded suspicion" is interchangeable with "grave suspicion" and the variance in the request documentation results from translation.
• Pursuant to section 33(2)(a) of Act IV of 1978 of the Hungarian Criminal Code, the criminal action with which [the respondent] is charged has not yet lapsed and the offence for which his extradition is sought continues to be punishable.
• The request for extradition submitted by Hungary in accordance with Article 1 of the Treaty on Extradition between the Republic of Hungary and Australia requested the extradition of [the respondent] for the purpose of prosecution under the international arrest warrant issued on 3 March 2005 by the Metropolitan Court.
94 Although, as will appear below, the primary Judge ultimately accepted the respondent's case that he was not "accused" within the meaning of the definition of "extraditable person" in the Act, his Honour held that the Attorney-General's s 16 notice of 8 July 2005 could not be impugned by reference to facts which became available only in 2009. His Honour said:
The material before the Attorney-General demonstrated that a military judge of the Military Division the Budapest Metropolitan Court issued a warrant for the arrest of [the respondent] and that warrant on its face is described as a 'warrant' and seeks [the respondent's] arrest in respect of a specified offence. It also states that evidence against [the respondent] has already been the subject of consideration by the Hungarian authorities to the point where they hold a 'grave suspicion against [the respondent] of having committed the [following] crime'. It asserts that the 'contents of the above historical statement of the facts and the well-founded suspicion on the basis thereof, are duly established'. The Attorney-General was legitimately entitled to have regard to these matters in forming the opinion that there was a warrant in force for [the respondent's] arrest.
Thus his Honour rejected Ground 1. That rejection was not the subject of any challenge by the respondent in the present appeal.
95 Ground 2 was advanced in support of the respondent's challenge to the Magistrate's determination under s 19 of the Act. It was contended that the determination was beyond jurisdiction because the Attorney-General's notice under s 16 was bad, for the reasons relied upon under Ground 1. It was put that the effect of a successful challenge to the legality of the s 16 notice was to vitiate any proceeding, or any determination, under s 19 (see s 19(1)(b)). The primary Judge rejected this ground too, for the following reasons:
[I]n conducting the proceeding under s 19 of the Act, it is not open to the learned magistrate to go behind a notice under s 16 of the Act. Her Honour was acting administratively and was obliged to proceed on the basis that the notice, if not invalid on its face, was a valid document: Kainhofer [DPP v Kainhofer (1995) 185 CLR 528] at 538; Vasiljkovic v Commonwealth (2006) 227 CLR 614. I accept the submission for the Commonwealth that the scheme of the Act is that the powers other than those conferred on a court under s 21 are administrative in nature, exercised in sequence, with none of the decision-makers being authorised to review the exercise of a power earlier in the sequence: Kainhofer at 538.
The primary Judge's rejection of Ground 2 was not the subject of any challenge by the respondent in the present appeal.
96 Ground 3 was advanced in support of the respondent's challenge to the Minister's determination under s 22 of the Act. As I read this ground as particularised, and as the primary Judge appears to have read it, the ground had two aspects. The first was the contention that the respondent was not, as a matter of categorical fact, an "extraditable person" as defined and could never, therefore, be extradited. The second was that the Minister's discretion, to the extent that he had one, under s 22 miscarried because he failed to have proper regard to the legal distinction referred to in item (c) of the particulars set out in the ground (by reference to item (c) in the particulars to Ground 1). In each aspect the gravamen of the point was the same as that which was pressed under Grounds 1 and 2, namely, that the respondent had not been "accused" of the war crime for which he was wanted by Hungary.
97 The primary Judge recorded the submission of the appellants that the only (presently relevant) question for the Minister was whether an order had in fact been made under s 19(9) of the Act committing the respondent to prison. That being the case, according to the appellants, it was beyond the competence of the present inquiry to enter upon the issue which had been determined under s 16: see Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528, 533-540. The primary Judge did not accept the correctness of the limitation proposed by the appellants, holding in effect that it remained open to the respondent to contend, in a challenge to the Minister's determination under s 22, and notwithstanding that his Honour had held that direct challenges to the corresponding decisions under ss 16 and 19 were no longer open, that he had never been an "extraditable person". His Honour said:
The fact that s 22 makes no mention of s 16 would not preclude the Minister making a fresh and, in this case, negative assessment of [the respondent's] eligibility if it were appropriate to do so. It is not the case that the making of an order by the learned magistrate under s 19(9) legally estopps or prevents the Minister (or the Attorney-General) finding that the eligibility qualification is not satisfied if new information to hand contradicts the basis on which earlier determinations were made.
His Honour accepted that there was -
… force in the submission made for [the respondent] that "… there is no immutable law of the Medes and Persians…" that once determined to be eligible at one of the earlier stages of the extradition process, the Minister or the Attorney-General has no option other than to robotically act on those earlier determinations in the face of his positive knowledge that he lacks the proper legal authority for surrender.
98 The primary Judge noted that Att C - the advice received by the Minister for the purposes of his decision under s 22 - had canvassed the respondent's argument that the information received from Hungary by way of the letter of 17 March 2009 demonstrated that he was not "accused" within the meaning of the definition of "extraditable person". His Honour said:
[T]here is no position at law which means that the Minister or the Attorney-General could not take into account the new information at the time of acting pursuant to s 22 of the Act late in 2009. In reality, the submission made to him in Attachment C quite properly worked on that assumption as it did refer to the new information. Indeed, a Minister is not entitled to ignore new material that has come to hand and which may have a direct bearing on the "justice" of making the decision. As a general principle the High Court made clear in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 that a decision-maker should make the decision on the most current material available to the decision-maker.
99 His Honour accepted the respondent's submission that the information of 17 March 2009, and Hungary's response to it, demonstrated that the respondent was not in fact "accused" of a war crime, but only wanted for the purpose of the relevant investigation. As to the consequences of that conclusion, his Honour said:
The entire premise of the earlier actions was, by the time of the s 22 determination, known to be incorrect. The fundamental purpose of the Act by reference to s 3 and s 6 is to provide for extradition of people who are "accused" (or convicted), not people "suspected". The Act does not authorise the extradition of persons who are only suspected of committing an offence (assuming that the offence existed at the relevant time). To decide to surrender someone for a purpose not authorised by the Act is invalid per se in the sense that it is beyond power. This is so regardless of the criteria in s 22 otherwise having earlier been established, albeit on the false premise that [the respondent] was extraditable.
As [the respondent] was, as a matter of fact, not ever capable of being found to be an "eligible person" under s 19(2) of the Act, the Minister had no power to make a determination for his surrender for extradition under s 22 of the Act. In consequence, the Minister's determination that [the respondent] should be surrendered for extradition is not authorised by law and is a nullity.
Thus His Honour upheld Ground 3 primarily because the respondent was not an extraditable person in fact, which circumstance removed the statutory foundation for a determination under s 22(2) that he was to be surrendered to Hungary.
100 The primary Judge also accepted the second basis upon which the respondent argued that Ground 3 should be upheld. His Honour held, in the alternative, that the Minister's discretion under s 22 had "miscarried", because it was "clear from the Act and the Treaty that a fundamental element of any extradition application is that the person be accused or convicted of an extraditable offence and not merely 'suspected' of committing one". His Honour continued:
It is entirely reasonable to imply into s 22 a requirement that the Minister consider any new material that comes to light which elucidates the status of a person who has been wrongly classified as an "extraditable person" at the first stage. To ignore such material and approve the surrender of a person despite actual or constructive knowledge that that person is not an "extraditable person" would be to defeat the purpose of the Act.
His Honour found support for this approach in the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, and in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149.
101 Ground 4 was concerned with whether the offence of "war crime" in relation to which Hungary had requested the surrender of the respondent was a "qualifying extradition offence" within the meaning of s 22(2) of the Act. The ground invoked s 11(1) of the Act and Art 2.5(a) of the Treaty. It was contended on behalf of the respondent that the offence in relation to which his surrender was sought had not been an offence in Hungary at the time of the commission of the acts said to have constituted it. It was common ground that the specific offence of "war crime" in connection with which the respondent was wanted in Hungary did not exist in 1944 when the acts in question were alleged to have taken place. However, the appellants contended before the primary Judge that para (a) of Art 2.5 should be construed so as to encompass any offence under which the relevant acts were unlawful in the Requesting State at the time. It seems that Hungary had advised the Attorney-General that the acts alleged against the respondent, if established, would have constituted murder in Hungary in 1944. The appellants relied upon that in their defence to Ground 4.
102 The primary Judge noted that Art 2.5(a), on its face, reflected "an important international human rights principle against retrospectivity". His Honour said that murder was not "the same thing as a war crime", albeit that "killing someone" may be an element in each. He continued:
Making every possible allowance for the obligations of co-operative, sensible, purposive and liberal interpretation contended for by [the appellants], [the respondent's] argument is well made in my view. An offence of "war crime" is a different offence from the offence of murder. That is so under Australian law and, on the evidence, on Hungarian law. Secondly, the penalties are different.
His Honour held that Art 2.5(a) dealt with offences, not with conduct, and that the Minister had been "incorrectly advised on this central issue" by the authors of Att C. It was, in his Honour's view, not to the point that the acts alleged against the respondent may have constituted murder at the relevant time: the actual offence for which he was wanted did not then exist in Hungary. Thus his Honour upheld Ground 4.
103 Grounds 5 and 5A, which were considered together by the primary Judge, invoked the operation of s 22(3)(e)(ii) and (iv) of the Act and of Art 3.2 of the Treaty. Ground 5 relied upon para (a) of Art 3.2, as to which it was common ground that the respondent was an Australian national, having been nationalised as such in 1958. Thus the factual circumstance giving rise to the discretionary basis of refusal set out in Art 3.2(a) existed. Before the primary Judge, the respondent also argued that he had, by a series of events, lost his Hungarian nationality. However, in Att C the Minister had been advised that Hungary still regarded the respondent as a Hungarian citizen. The primary Judge said:
The Department also advised that whether or not [the respondent] is also a Hungarian national does not impact upon the merits of Australia's consideration of Hungary's Request. Further, the Department advised that "the protections afforded to [the respondent] as an Australian citizen do not, however, as a matter of long standing policy, extend to refusal of his extradition by reason of that citizenship if extradition is otherwise considered appropriate".
104 The respondent argued below that para (a) of Art 3.2 presented a clear alternative to extradition in the case of an Australian national: that he or she should be prosecuted for the alleged offence under Australian law. His case was that there "was no serious suggestion, if at all, in Attachment C that this option should have been explored". From this it was, according to the respondent, to be inferred that the Minister had given no separate consideration to this alternative possibility, and thus had failed to take into account a relevant consideration. According to his Honour's reasons, it was said on behalf of the respondent -
… that the Minister appears to have foreclosed consideration of whether to exercise the discretion to refuse on the basis of a so called 'long standing policy' that Australia will not refuse extradition on the basis of Australian citizenship alone, and failed to have regard to the merits including [the respondent's] nationality at all as a reason for refusal.
105 It is, with respect, not self-evident from the primary Judge's reasons what his Honour made of Ground 5. I can find no passage in those reasons in which the proposition that the Minister failed to have regard to a consideration to which he was, as a matter of obligation under the Act, required to have regard (in the Peko-Wallsend sense) was either accepted or rejected. His Honour did appear to accept the submissions made on behalf of the appellants that "Australian citizenship is simply a circumstance by which a discretion may be exercised to refuse extradition" and that "the advice [in Att C] was entirely correct that Australia does not refuse extradition on the basis of Australian citizenship alone if extradition is otherwise considered appropriate" (emphasis in original). His Honour also noted, and seemed to accept, the submission that Att C had made it clear to the Minister that the respondent was an Australian citizen.
106 As against these observations, the primary Judge held that the "foundational complaints" for Ground 5 had been made out. He said:
Yet the Minister was not adequately, if at all, advised by the Department that it was open to him to consider as a real possibility the option of declining to surrender but acceding, as Australia must, to a requirement by Hungary that [the respondent] be submitted to Australian authorities for prosecution. The only passing and very brief reference to that option (at [315] of Attachment C) was immediately countered and dismissed with a repetition of the reminder that it is long-standing practice that Australian citizenship "alone" is not a sufficient basis to decline surrender for extradition. The policy has been allowed to override any genuine and real evaluation of the totality of the merits which were not confined only to [the respondent's] citizenship.
His Honour held that "when the Minister exercises his or her discretion, he or she is expected to give real and genuine consideration to the merits of the claims being made rather than simply to apply policy".
107 But the primary Judge did not proceed to uphold Ground 5. He held that "errors alone in the advice to the Minister would not necessarily vitiate a decision", and, in conclusion under this ground, his Honour said:
The difficulty, however, as it appears to me with these two grounds (5 and 5A) is that notwithstanding what is now an accumulation of errors, it remained open to the Minister to take into account [the respondent's] nationality but still not conclude that that was an adequate discretionary basis for refusing surrender. Similarly, while the authorities of Australia had decided to refrain from prosecuting [the respondent], it was only a discretionary consideration and it was open to the Minister to not refuse extradition. I do not consider these grounds can succeed.
It was in these terms that the primary Judge rejected Ground 5.
108 It will be clear from the paragraph just quoted that the primary Judge also rejected Ground 5A. Under that ground, the respondent invited his Honour to hold that the Australian authorities had "decided to refrain from prosecuting" him, thereby bringing para (b) of Art 3.2 of the Treaty into play. His Honour's finding of fact for the purposes of this ground was as follows:
The evidence shows that the AFP [Australian Federal Police], having accepted a referral concerning an allegation of a war crime, considered the possibility of prosecuting [the respondent] for an offence under the War Crimes Act 1945 (Cth). The AFP sought advice from the CDPP [Commonwealth Director of Public Prosecutions] about whether such a prosecution could be initiated in Australia. The CDPP advised that in the absence of any testimony from living witnesses, not even a prima facie case existed to support a prosecution under the War Crimes Act. The AFP did not pursue the investigation following the CDPP's advice.
On this point, his Honour said that he agreed with the following submission made on behalf of the respondent:
[W]hen a prosecuting authority, like the AFP, is asked to investigate an allegation, reports to the CDPP that the only evidence which has been made available are statements of two witnesses who are now deceased, is advised by the CDPP that there would not be sufficient evidence to establish a prima facie case against [the respondent] and neither the AFP nor the CDPP takes any further step and in fact do not prosecute [the respondent], it is "sophistry" to suggest that the competent authorities (the AFP and CDPP) have not yet "decided to refrain from prosecuting" [the respondent].
However, for the reasons set out in the extract in the previous paragraph, his Honour rejected Ground 5A.
109 Ground 6 also invoked the operation s 22(3)(e)(ii) and (iv) of the Act. Here, the discretionary basis for refusal upon which the respondent relied was that set out in Art 3.2(f) of the Treaty. The respondent's case was that his extradition would be unjust (etc) within the meaning of this provision because he could not be assured of a fair trial in Hungary. It seems that Capt Mader and Lt Nagy (see para 89 Ground 6(c) above) had been tried for their parts in the events alleged against the respondent in 1944, and that it was proposed to make good the prosecution case against the respondent by reference to statements and other remaining documentary fragments from those trials. The respondent asserted, and made the point that Hungary itself had not denied, that there was no living witness whose viva voce evidence would provide the basis of the proposed Hungarian prosecution, and which he could test by means conventionally associated with criminal trials. In this regard the respondent supported his case on injustice by reference to Art 6 of the European Convention on Human Rights and Art 14 of the International Covenant on Civil and Political Rights. It was argued on his behalf that, although the Minister - guided by Att C - had given ostensible attention to these matters, he had relied on an assumption that Hungary would, consistently with its obligations under that Convention and that Covenant, provide a fair trial, and had thus failed to take the matters into account by giving "proper, genuine and realistic consideration" to the circumstances which were relevant in the sense in which that expression was utilised by Gummow J in Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 11 December 1987). Alternatively, it was argued that, given the seemingly uncontested assertion that there were no living witnesses available to give evidence against the respondent, the Minister's conclusion that extradition should not be refused on the injustice ground was so unreasonable that no reasonable decision-maker could have reached it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
110 The primary Judge held that the respondent's challenge to the Minister's determination did not "reach the level of near absurdity necessary for Wednesbury unreasonableness". Neither did it meet the requirements referred to by Gummow J in Khan. His Honour continued (and concluded on this ground):
I do not think it is open on the materials before the Minister to infer that he failed to seriously consider the fair trial question. Analysis of the topic in Attachment C was reasonably fulsome. While it did contain references to comity, that subject was very relevant. I do not consider that there were errors on this topic as there were on some. On the fair trial point it was appropriate to assume that Hungary would make suitable provision for the very unusual circumstances.
Thus his Honour rejected Ground 6.
111 Ground 9 dealt with the adequacy of the Minister's consideration of what might be described as the general humanitarian factors which arose under Art 3.2(f) of the Treaty, given the respondent's advanced years and poor health. The primary Judge noted that a "substantial portion" of Att C dealt with the issues raised by this ground, and that what his Honour accepted were the respondent's "unique circumstances" were acknowledged (although not so described in terms). It appears from Att C that, notwithstanding that acknowledgement, the Minister's advisers expressed the view that the totality of the circumstances were not such as would justify refusing extradition on the grounds referred to in Art 3.2(f) of the Treaty.
112 His Honour noted that senior counsel for the respondent had, twice in the course of his address, made the point that, given the respondent's ill-health and advanced age, extradition to Hungary "could be a death knell for him". Senior counsel for the appellants had not "[raised] objection to or [submitted] that an expression of that nature was unfounded, fanciful or farfetched". His Honour did not take that silence to amount to an acceptance of the submission made on behalf of the respondent, but added that "it would also be difficult in the circumstances for senior counsel for the [appellants] to deny that [the respondent's] extradition could have the outcome suggested". His Honour continued:
It requires only normal experience of life and awareness of the frailty of those who are elderly and quite unwell to accept that this is not just a remote possibility. Yet it was one very substantially discounted by the Department in its analysis. Amongst other points made, the Department suggested that these considerations could be taken into account by Hungary.
113 The primary Judge took the view that, to the extent that the authors of Att C had paid regard to the respondent's health and advanced years, they did so in a way that was, in effect, disjointed from other significant features of the unusual case with which they were dealing, specifically the respondent's Australian nationality, and particularly when Art 3.2(a) of the Treaty contemplated the alternative of a prosecution in this country. His Honour said:
329. The Department made the point that the health and age factors should be balanced against the seriousness of the alleged offence but did not suggest that the Minister should, in his very broad discretion, consider the weakness of the evidence which might support the suspicion as to the offence.
330. Clearly, the nature of the offence and Hungary's interest in the matter and the fact that Australia does not want to protect or be seen to protect war criminals from prosecution are very important considerations but when they are considered, they must also be weighed against the totality of the extraordinary factors in this situation.
331. Although the Department was appropriately cautious to avoid a conclusion that there could be said to be no real medical risks, it approached this topic as it did others. Rather than weighing the totality of the factors, the Department has considered whether or not [the respondent] has positively established each individual concern. As a result, in a number of instances the Department has reported that it has no knowledge of problems with, for example, health care during incarceration.
….
336. [The respondent] argues that a truly proportionate calculation of the balancing process must include consideration of realistic and available alternatives. In that regard, no explanation has been given as to why the alternative of prosecution before an Australian court, with greatly reduced risk to [the respondent's] health, is not compatible with the Treaty. In my view, it is this argument that is significant.
114 Noting the appellants' submission that matters relevant to Art 3.2(f) of the Treaty were put before the Minister in detail in Att C, and that matters of weight were for the Minister to decide and would not give rise to reviewable error, his Honour nonetheless concluded as follows:
344. However, in my view the Commonwealth's response overlooks the fact that in the obligation to consider the humanitarian considerations, the Minister must give realistic, proper and genuine consideration to the merits rather than allow them to be overridden by a policy objective. This is not a question of weight but a question of obligation at law.
345. In the very unusual nature of this case, to in effect totally ignore the Art 2(a) [sic] option of declining surrender but accepting a request for prosecution of [the respondent] within Australia, as expressly contemplated by the Treaty indicates that realistic, genuine and proper consideration to the merits of Art 3, para 2(f) was not given.
346. In my view, [the respondent] has succeeded in showing that the Minister erred in law, and committed jurisdictional error, by failing to take into account relevant considerations when considering whether, in accordance with Art 3, para 2(f), it would be oppressive and incompatible with humanitarian considerations to surrender [the respondent] for extradition, given his advanced age and his ill-health given that there were more appropriate alternatives under Art 2(a) [sic] (which would give full force and effect to "humanitarian considerations") and to the Treaty than surrendering him for extradition to Hungary.
Thus the primary Judge upheld Ground 9.
115 Ground 10 was concerned with the detriment which would be visited upon the respondent by the passage of time since the occurrence of the events in 1944 which were alleged against him. As the ground came to be considered by the primary Judge, a significant feature was the timing and circumstances of the respondent's change of name from Steiner to Zentai. One aspect of the advice contained in Att C dealt with the question whether the extradition of the respondent would be "unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment" within the terms of Art 3.2(f) of the Treaty. Here, the authors' advice was as follows:
214. There are also a number of Australian cases that are authority for the proposition that the "passage of time" argument is less likely to result in the refusal of extradition where the offence is very serious or where it was committed in an aggravated form. Many of the cases in which an argument of "passage of time" has been rejected are where the circumstances of the case involved a relatively serious offence, or circumstances where the delay was the fault of the fugitive. Both of these circumstances are relevant to assessing the affect [sic - effect] of delay in [the respondent's] circumstances. In particular, in the case Re Gorman [1963] NZLR 17 at 18, the accused had been living under an assumed name and his whereabouts was unknown to authorities. The court commented that for him to rely on the length of time which has elapsed would be to "claim a benefit from success in escape and concealment". This counters claims made by [the respondent] that he has been living openly in Australia for the past 60 years and never sought to conceal his identity. On the basis of Re Gorman, [the respondent's] claims should be given less weight on the basis that he also changed his name from Steiner to Zentai and Hungarian authorities have advised that they had no knowledge of [the respondent's] whereabouts until 2004. This issue is further discussed at paragraphs 273-276, but for the purposes of Article 3(2)(f) you can be satisfied that when having regard to the other circumstances of the case, in particular the nature of the offence and conduct involved, the effect of the passage of time would not make extradition so oppressive or unjust as to warrant the exercise of your discretion to refuse surrender.
116 Attachment C dealt with much the same point when advising on the exercise of the general discretion arising under s 22(3)(f) of the Act. The authors regarded the submissions made to the Minister on behalf of the respondent as "implicitly [alleging] delay on the part of the Hungarian authorities". They advised:
275. Further, just because a person has lived under the false assumption that they are no longer wanted for prosecution is not reason enough to deny surrender. It should be noted that while [the respondent] might have lived openly and accessibly in Australia for the last 59 years, he has also lived under a different surname (Zentai) to the surname (Steiner) in which the arrest warrant for him was issued. The Department understands that during the time [the respondent] resided in Germany prior to arriving in Australia he changed his name to Zentai.
In point of fact, documents which had been forwarded to the Minister on behalf of the respondent in September 2009 showed that the respondent's name change occurred in 1935, when he was 13 years old, and was done on his behalf by an older member of his family.
117 The primary Judge held that Att C had been "wrong on the name change point of view", that that was "something the Minister might well have taken into account", that a change of name would "support an assertion of a person being a fugitive in order to escape prosecution", and that it was to be inferred that the Minister did take that circumstance into account. However, his Honour took the view that, while unfortunate, this error on the part of the Minister's advisers, taken alone, "would [not] be sufficient to constitute jurisdictional error". His Honour added that it was improbable that the error alone might have "tipped the discretionary balance" against the respondent, since "the weight of Attachment C was generally strongly against all of the arguments he had raised". Thus his Honour rejected Ground 10.
118 As to Ground 11, the primary Judge took the view that, aside from the specific grounds which he had upheld, it could not be said that the Minister's determination under s 22, was "sufficiently irrational, capricious or so unreasonable that no reasonable person could have made it so as to satisfy a ground of review on a Wednesbury unreasonableness basis". His Honour rejected the ground.
119 Rejecting Ground 12, the primary Judge held that there was neither a common law nor a statutory obligation to provide reasons for a s 22(2) determination.
120 On 10 December 2010, the primary Judge made orders to reflect his reasons as summarised above. To the extent that those orders dealt with matters of substance, they provided as follows:
1. A writ of certiorari issue to quash the decision of the first respondent made on 12 November 2009 pursuant to section 22 of the Extradition Act 1988 (Cth) (the Act) determining that the applicant should be surrendered to the Republic of Hungary.
2. A writ of certiorari issue to quash the warrant dated 12 November 2009 issued by the first respondent pursuant to section 23 of the Act authorising the applicant's surrender to the Republic of Hungary.
2A. It is declared that upon a proper construction of section 22 of the Act, the offence in respect of which the Republic of Hungary seeks the extradition of the applicant in the Extradition Request of the Republic of Hungary dated 23 March 2005 is not an 'extradition offence' within the meaning of the Act and the applicant was, as a matter of fact, not capable of being found to be an 'eligible person' under s 19(2) of the Act.
3. Upon a proper construction of section 22 of the Act and Article 2(5)(a) of the Treaty on Extradition between Australia and the Republic of Hungary 1995 contained in the schedule to the Extradition (Republic of Hungary) Regulations 1997, it is declared that the offence in respect of which the Republic of Hungary seeks the extradition of the applicant in the Extradition Request of the Republic of Hungary dated 23 March 2005 is not an 'extraditable offence' within the meaning of the Act.
4. A writ of mandamus issue to the first respondent directing him:
4.1 To determine that the applicant not be surrendered to the Republic of Hungary in response to the Extradition Request of the Republic of Hungary dated 23 March 2005 concerning the applicant; and
4.2 To order the release of the applicant.
5. The further amended application be otherwise dismissed.