The Minister's opinion
39 Be that as it may, one of the main obstacles in the applicants' path is, it seems to me, that each of the s 16 notices issued by the first respondent states she is of the opinion referred to in s 16(2)(a)(i), namely, that the relevant applicant is an extraditable person in relation to the extradition country.
40 The power to issue a s 16 notice depends, amongst other matters, on the fact that the opinion is held. The first respondent submits that, in order to succeed on this aspect of their case, the applicants would have to demonstrate that no person in the position of the first respondent on the dates when she issued the notices, having the material which was available to her, could reasonably have held that opinion: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 and 234; R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 435; Foster v Attorney-General (Cth) (1997) 97 A Crim R 560 at 568; and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 609. The applicants submit that they will succeed if they are able to show that the first respondent necessarily asked herself the wrong question in forming the opinion described in s 16(2)(a)(i) of the Act. For present purposes, I accept that submission. I also accept that, for present purposes, the applicants' evidence as to the effect of the Amparo stays would be relevant to a challenge to the validity of the s 16 notices if that evidence showed that the first respondent asked herself the wrong question, or that she could not reasonably have been of the opinion referred to in s 16(2)(a)(i). The evidence as to the effect of the stays in Mexican law would be irrelevant, however, if, on no view, could s 6(a)(i) of the Act bear the construction for which the applicants contend. That, in summary, is the case for the first respondent.
41 For the purpose of these interlocutory applications, it is common ground that the Mexican warrants are valid. The case for the first respondent is that the expression "warrant … in force for the arrest of a person" cannot bear the meaning the applicants seek to give it. The expression contains, the first respondent has observed, a noun with two qualifications ("in force" and "for the arrest of a person"). Each qualification applies to the word "warrant". In consequence, the expression could, so the first respondent submits, read (without changing its meaning) "warrants for the arrest of a person which are in force" or "valid warrants for the arrest of a person". According to the first respondent, the words "in force" simply mean "valid" or "operational": cf definition of "force" in Oxford English Dictionary ("in force", 8c) and Macquarie Dictionary. The warrants in question are valid and operational in two senses: first, the stays do not, so the first respondent submits, take effect until the applicants enter the jurisdiction of Mexico and, secondly, if they were to fail to comply with the conditions of the stays once within the jurisdiction, then the applicants would be liable to arrest under the warrants. Put simply, the stay qualifies the warrant: if there were no warrant, then there would be no need for a stay.
42 In support of those submissions, the first respondent relies on L. Joseph Pty Ltd v Gray (1939) 56 WN (NSW) 190, Pikor v Smith [1982] Tas. R 240 and Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351.
43 The first case concerned the effect of a stay of proceedings under the Moratorium Act 1932 (NSW) on a writ of fieri facias. Bavin J rejected a submission to the effect that, after the sheriff had received notice of the stay, his continued possession of goods earlier taken under the writ was unlawful. His Honour said at 195-6:
A stay of proceedings, as I understand it, does not require anything to be undone that has been legally done. It does not require the party against whom it operates, to alter the legal position that has already been created. It merely prevents anything from being done that would in any way alter that position.
…
I think the effect of the stay is to leave the position in fact, just as it is, and to forbid the Sheriff to take any step which would alter the legal position.
44 In Pikor v Smith, Cox J held that a warrant of arrest under s 78(4) of the Justices Act 1959 (for non-payment of a fine) was valid, although issued pursuant to proceedings that were stayed after the warrant was issued.
45 In Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351, Burchett J considered the effect of a stay on a deportation order, observing at 353:
Mr Gray then argues that, since the deportation order has been stayed pending the hearing of his appeal, it is not 'in force' within the meaning of s 93(1) [of the Migration Act 1958]. But that is to mistake the effect of the stay. Although the Minister must temporarily hold his hand, the order has not ceased to be in force. Its ultimate operation is merely suspended. This point, too, fails, and the arrest was lawful.
If, so the first respondent submits, a stay in Australian law does not deprive the primary order of the character of being "in force", then, a fortiori, the stays granted in the Mexican courts do not deprive the Mexican arrest warrants of that character. Further, the warrants are, so the first respondent claims, subject to declarations of validity by Mexican courts. (The applicants submit that Gray is distinguishable, because that case did not involve any stay on an arrest warrant, and the arrest warrant in Gray had, in any event, been executed prior to the stay order. I accept that, of course, there are those differences between the present cases and Gray. It is another question, however, whether those differences diminish the force of Burchett J's remarks, to the extent that they may relate to this case.)
46 In summary, the first respondent submits that the construction of s 6(a)(i) propounded by the applicants is untenable; and, in consequence, the applicants cannot show that it was not reasonably open to the first respondent to have held the opinion that the warrants were in force at the time she issued the s 16 notices under challenge in the proceedings. In any event, so the first respondent submits, she did not know anything of the Amparo stays at the time she issued the Pasini notice and the first Cabal notice. What is more, given the material before her at the time she made her decision to issue the second Cabal notice, the existence of the Amparo stays could not have compelled the conclusion that Mr Cabal was not an extraditable person.
47 Having regard to the parties' respective submissions, is there a serious issue to be tried arising from the existence of the Amparo stays? The evidence as to the Mexican law is not yet complete and, indeed, the terms of all of the stay orders are not yet in evidence. In this state of affairs, it is not the Court's function to seek to resolve conflicts in the evidence as to the state of Mexican law. Although, at this stage of the proceedings, I do not think that the applicants' construction point (in relation to s 6(a)(i)) is a particularly strong one, it is fairly arguable. The evidence as to what lay before the first respondent at the time she issued the notices under s 16(1) may also not be complete. For the purposes of these applications for interlocutory relief, I am prepared to accept that the applicants have shown that there is a serious question to be tried in relation to the Amparo stays.