Rivera v Minister for Justice and Customs - [2006] FCA 842 - FCA 2006 case summary — Zoe

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Rivera v Minister for Justice and Customs

[2006] FCA 842

Federal Court of Australia|2006-06-27|Before: Graham J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2006-06-27

Before

Graham J

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

REASONS FOR JUDGMENT 1 These proceedings were commenced by an application filed 23 January 2006. The applicant is presently held in detention at the Metropolitan Remand and Reception Centre at Silverwater pursuant to a warrant issued under s 19(9) of the Extradition Act 1998 (Cth) ('the Act'), a Magistrate having determined that Mr Rivera, the applicant, is eligible for surrender to the United States of America in relation to an extradition offence being a charge of murder. 2 The respondents named in the application are the Minister for Justice and Customs of the Commonwealth ('the Minister') and the State of New South Wales. The Minister, who is responsible, along with the Attorney General, for the administration of the Act, has moved the Court by notice of motion filed 9 March 2006 for an order that the proceedings be dismissed under Order 20 rule 2 of the Federal Court Rules ('the Rules'). As I would understand it, the Minister's application is confined to those claims for relief in the application which are made against the Minister, as opposed to those made against the State of New South Wales, the second respondent. 3 The application is described as a writ of habeas corpus/bail application. Under the heading 'Details of Claim' 16 paragraphs are recorded as follows: '1. A writ of habeas corpus, or alternativerly (sic) the applicant be released on bail. 2. A declaration that the warrant executed on 19 September 2002 is a nullity, or an abuse of process under the Extradition Treaty Act (sic) ("the Act"). 3. A declaration the applicant has been unlawfully detained since his arrest. 4. Damages for false imprisonment. 5. Alternatively, these proceedings be stayed until the applicant is able to put his case forward free from interferance (sic). 6. A declaration that the second respondent's agents confisicating (sic) the applicant's computer disk containing his legal work in relation to his extradition case was made without lawful authority. 7. A declaration that the second respondent's agents made on or about September 2005 that the applicant be segregated and detained away from other prisoners facing extradition for the purpose to inhibit providing or receiving legal assistance was made without lawful authority. 8. A declaration that the second respondent's agents conspired and engaged in acts to disrupt and de-rail these proceedings. 9. A declaration that the second respondent's agents attempted to molest and sexually violated the applicant. 10. A declaration that the second respondent's agents physically assaulted the applicant. 11. A declaration that the second respondent's agents tampered and concealed the applicant's mail in November and December 2005 was made without lawful authority. 12. A declaration that the second respondent's agents have engaged in threats and acts that are calculated to prejudice, obstruct, or interfere with the due administratioion (sic) of justice in relation to the applicant's extradition matter. 13. A declaration that the applicant is entitled to protect, by means of legal redress his right to litigate his extradition proceedings free from prejudice. 14. An injunction restraining the respondents - whether agents or otherwise from interfereing (sic) with these proceedings. 15. Any orders the court thinks fit. 16. Cost.'

[3]

6 On the Minister's application for summary dismissal, an affidavit of Michael Stuart Rennie, affirmed 26 June 2006, has been read. Mr Rennie, being a senior lawyer employed by the Australian Government Solicitor, is instructed in this matter on behalf of the Minister by an officer of the Extradition Unit in the Attorney-General's Department of the Commonwealth. 7 Whilst certain affidavits have been sworn by the applicant in the proceedings, and his attention has been drawn to those affidavits, none of them have been read by him on the current application. He has, however, tendered a copy of a letter from McGowan Lawyers to the Minister, dated 4 June 2006, and also a bundle of documents produced by him. 8 In relation to applications of this nature, the principles to be applied are well established. If the applicant's case is so obviously untenable that it cannot possibly succeed, manifestly groundless, so manifestly faulty that it does not admit of argument, discloses a case which the court is satisfied cannot succeed, under no possibility could there be a good cause of action, or it is manifest that to allow them, that is to say the pleadings, to stand would involve useless expense, then the court should exercise its power to order summary dismissal. I should indicate that in this matter there have been no pleadings filed. 9 In General Steel Industries Inc v The Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, Barwick CJ said: '... great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.'

[7]

14 As I would understand it the United States of America has indicted or wishes to indict the applicant, Mr Rivera, for the murder of the deceased female. In August 2002 the United States of America ('USA') requested Mr Rivera's provisional arrest in respect of an offence of murder. On 4 September 2002 a New South Wales Magistrate issued a provisional arrest warrant under s 12 of the Act for the arrest of Mr Rivera. On 19 September 2002 he was arrested under that provisional arrest warrant. My understanding is that he has been held in custody ever since. He was brought before a Magistrate following his arrest and remanded in custody under s 15 of the Act. 15 On 12 November 2002 the USA presented a request to Australia for Mr Rivera's extradition. On 16 December 2002 a Magistrate of the State of New South Wales determined under s 19 of the Act that the applicant, Mr Rivera, was eligible for surrender to the USA in relation to the extradition offence of murder. It is well established that the powers so conferred upon the Magistrate were of an administrative nature (see Director of Public Prosecutions of the Commonwealth v Kainhofer [1995] 185 CLR 528 at 538) 16 On 16 December 2002 the Magistrate ordered that he be committed to prison, in relation to the relevant extradition offence, to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s 22(5) of the Act. It is under that warrant that the applicant is presently detained. 17 On 31 December 2002 the applicant applied to the Supreme Court of New South Wales under s 21 of the Act for review of the order made by the Magistrate under s 19(9) of the Act. On 28 November 2003 the Supreme Court of New South Wales confirmed the Magistrate's order. 18 On 10 December 2003 the applicant appealed to a Full Court of this Court from the decision of the Supreme Court. On 16 June 2004 that appeal was dismissed, it being determined that the applicant was eligible for surrender. 19 On 24 June 2004 the applicant applied to the High Court of Australia for special leave to appeal from the decision of the Full Court. That application for special leave was refused by the High Court on 10 December 2004. 20 On the hearing of the motion presently before the Court the applicant in the proceedings, Mr Rivera, has made it clear that he does not by his current proceeding wish to impeach the decision of the Magistrate that he is eligible for surrender nor the subsequent appeals from that decision. Whether Mr Rivera is to be surrendered to the United States in relation to the qualifying extradition offence now falls to be determined by the Attorney-General or the Minister for Justice and Customs in accordance with s 22 of the Act. 21 Subsections 22(2) and (5) are expressed as follows: '22(2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences. ... (5) Where the Attorney-General determines under subsection (2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney-General shall order, in writing, the release of the person.'

[8]

22 During his time in custody Mr Rivera says that he has been physically abused and maltreated. Insofar as his application relates to the Minister, I do not understand the applicant to be relying upon those matters. 23 The gravamen of his complaint is that since the High Court refused to grant him special leave to appeal on 10 December 2004 the Minister, as the relevant Minister administering the Act, has failed to make a determination one way or another under s 22 of the Act. The facts do not support this submission. 24 The evidence is that on 13 December 2004 the Attorney-General's Department wrote to Mr Rivera requesting that he provide any representations he may wish to make in relation to the decision to be made by the Minister under s 22 of the Act. In due course Mr Rivera provided a submission in response to the Department's invitation to do so. The Department proceeded to invite the USA to provide comments in relation to Mr Rivera's submission and it did so on 13 April 2005. Those comments were then sent to Mr Rivera in order to give him an opportunity to respond to them. On 8 June 2005 Mr Rivera sought an extension of time within which he should respond. Ultimately on 21 July 2005 he provided his second submission in response to the comments provided by the USA. 25 The USA was invited to make comments in relation to Mr Rivera's second submission and did so on 6 October 2005. On 20 October 2005 the Department provided those comments to Mr Rivera for his response and on 15 January 2006 he provided a response. 26 As indicated earlier, the current proceedings were instituted by Mr Rivera on 23 January 2006, but eight days after Mr Rivera responded to the invitation to comment on the USA's comments in relation to his second submission to the Minister. 27 Mr Rivera submits that there has been an unreasonable delay in the processing of the matter under s 22 of the Act between 13 December 2004 and the present time. 28 He instituted separate proceedings seeking judicial review in this Court on 11 February 2005 which were summarily dismissed on 15 March 2005. 29 On 4 June 2006 solicitors then retained to represent Mr Rivera, McGowan Lawyers, wrote on his behalf to the Minister stating inter alia: 'It is submitted to you that there is a paucity of material to sustain the Extradition Proceedings on the basis advanced by the US authorities. My client asks you to personally read his Submissions and feels confident that you will come to a view that you will not approve of the Extradition Proceedings. ... We ask that you please acknowledge this correspondence on receipt, in order for me to prepare an application for Bail before the Federal Court on 27 June 2006, founded on the dilatory attention given to this matter by Officers of your Department.'

[11]

34 In relation to the Court's power in proceedings such as this to order the release of a person on bail Mr Vorreiter, a solicitor from the Australian Government Solicitor who appears for the Minister, has, in my view, rightly pointed out that the Act makes express provision dealing with circumstances in which bail may be sought and granted and that the Act operates as a code. I accept that in the circumstances in which Mr Rivera presently finds himself there is no power in the Court to order that he be released on bail. 35 It is perhaps unfortunate that a determination has not as yet been made by the Minister under s 22 of the Act given that it is now some five months since Mr Rivera provided his last response to the Department. Section 22(2) clearly requires the Minister to make a determination whether a person is to be surrendered or not 'as soon as is reasonably practicable'. It would seem to me that circumstances could well exist where a person would be entitled to apply for relief in the nature of habeas corpus if there was protracted delay on the part of the Minister in making a determination after appeals had been finally determined and the Magistrate's decision that a person was eligible for surrender had been confirmed. 36 However, I fail to see how it could be said by Mr Rivera that he was unlawfully detained as at 23 January 2006 in circumstances where in the preceding 12 months every opportunity had been afforded to him and availed of by him to present his case to the Minister as to why a determination should be made under s 22 which was favourable to him. 37 Mr Rivera has submitted that new evidence is available which demonstrates that his detention is unlawful. It would seem to me that if new evidence were available which cast doubt upon a determination being made that he should be surrendered to the USA then the proper person to whom such a submission should be put is the Minister and not the Court. In Cabal, Gray J referred to a passage from a judgment of Deane J in Re Officer in Charge of Cells, ACT Supreme Court, Ex parte Eastman (1994) 123 ALR 478 at 480 where, amongst other things, his Honour said: 'It [referring to habeas corpus] is not ... available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity.'