Proposed Ground 4B - Nationality of applicant's family as a basis for discretionary refusal
78 This ground, the applicant submits should also be considered in conjunction with Ground 4. The applicant submits that the Minister erred in law, in failing to give proper, realistic and genuine consideration to whether, in the exercise of the discretion conferred by the Act and the Treaty, he should refuse extradition, having regard to the fact that the applicant's family are nationals of Australia, taken together with the time spent in Australia with his young, dependant family, the birth of his children in Australia and other relevant factors. Alternatively, he contends that the Minister's 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.
79 The applicant says that it is not disputed that three of the applicant's young children were born in Australia and are Australian nationals and that the applicant's wife and first born child have obtained residency in Australia. He submits that this information has not been satisfactorily answered, addressed, refuted and discounted by the Department in Departmental Attachment B, nor impliedly by the Minister and that if the Minister did not take this information into account as relevant facts then the Minister erred in law.
80 The applicant then submits that it appears that the Minister foreclosed consideration of whether to exercise his discretion to refuse, on the basis of a so-called "long standing policy" that Australia will not refuse extradition, which was prior to the determination of Zentai, and failed to have regard to the applicant's personal circumstances as a reason for refusal.
81 Thus, the applicant argues, the Minister thereby fettered the exercise of his discretion and disabled himself from properly and genuinely considering its exercise and the factors relevant to it and that by not considering this factor properly on its merits, he also compounded his failure by apparently adopting the advice of the Department, that the principle of comity required Australia to give paramount consideration, when determining those discretionary grounds, to the clear objective of the law and Treaty.
82 This asserted failure, by not giving individual consideration to the special and unique features of the applicant's case resulted, says the applicant, in the Minister failing to have a balanced or any due regard to Australia's other obligations and responsibilities under the Treaty, to its own nationals. This, the applicant says, includes not taking administrative action that, given his personal circumstances and family, may cause any unnecessary or disproportionate distress and disruption that his extradition would occasion if he were removed from Australia.
83 The applicant submits that all of these failures to have regard to these matters gives rise to jurisdictional error and that consequently, the Minister's determination under s 22 is without proper legal foundation and void.
84 In his representations to the Minister, the applicant stated that "the circumstances of this case mean that if I were returned to Ireland it would result in harsh, unjust and unfair consequences occurring to myself and my family". This claim was referred to in the s 22 submission, which specifically noted that three of the applicant's children were born in Australia.
85 In his representations to the Minister, the applicant made no claim that his three youngest children were Australian nationals and that his wife and eldest child had obtained residency. There is no evidence before the Court of such matters but, in any event, there can be no jurisdictional error by the Minister in not taking into account information which was not available to him.
86 I reject the applicant's submission that Australia has obligations and responsibilities under the Treaty to its own nationals. The Treaty is an agreement between two nation States: Australia and Ireland, which have obligations to each other under its terms. Neither the applicant nor any members of his family have any rights under the Treaty.
87 The applicant also raised a new but related submission. It was never put to the Minister, nor was it found in the applicant's written submissions. It was raised without notice and for the first time, at the hearing of the application. This submission asserts that when the Commonwealth is making an executive decision it is a relevant consideration for it to take into account international covenants and in this case the covenant described by Senior Counsel as that concerning the rights of children. Reliance was placed on the decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273. The applicant contends that the Minister was required to consider Australia's obligations under the relevant treaty with Ireland but also its "broader human rights obligations, for instance, under the rights of the child". It would, he contends, be harsh, unjust and unfair for these matters not to be taken into account.
88 It is in my view quite inappropriate to raise an argument of this kind without notice or particularly on the hearing of the application. Beyond a mere reference, in effect, to the United Nations Convention on the Rights of the Child there is no specificity as to which article(s) should have been but were not considered by the Minister. There was no motion to further amend the grounds for review in this respect. The submissions are not supported by evidence nor was any evidence before the Minister.
89 In Teoh it was held that the ratification of this Convention by Australia gave rise to a legitimate expectation that the Minister would act in conformity with it and treat the best interests of the applicant's children as a primary consideration.
90 The applicant had applied for a permanent entry permit and whilst this was pending he was convicted in Australia of drug offences and sentenced to imprisonment. His application was later refused, it being determined that by reason of his conviction he did not satisfy the "good character" criteria. The applicant and his wife, between them, were parents to seven children.
91 The appeal was allowed on the basis that the applicant had been denied procedural fairness in that he had not been afforded the opportunity to present a case against a decision inconsistent with the legitimate expectation.
92 This is not an analogue for the present case. I reject this submission.
93 There is no substance to the applicant's claim that the Minister failed to give consideration to the circumstances of the applicant's family in exercising his discretion as to whether or not the applicant should be surrendered to Ireland. The applicant has not demonstrated any jurisdictional error by the Minister in relation to his consideration of the applicant's family's circumstances.