Rivera v Minister for Justice and Customs

Applicant's claims 6 On 5 April 2007 the applicant filed a communication with the United Nations to have his extradition case heard by the High Commissioner for Human Rights. A notification has been received from the UN that his communication has been assigned to the Committee against Torture ('the UN Committee') and has been given the reference number 316/2007. He claims that the UN have still to make a determination in relation to such communication. 7 The applicant instituted proceedings in the Supreme Court of New South Wales on 30 January 2007 against the US and on 2 April 2007 against the Commonwealth and others. The applicant is also conducting proceedings in this Court against the Human Rights and Equal Opportunity Commission. All of such proceedings will be referred to hereunder as 'the applicant's ongoing litigation'. 8 The applicant claims that the writ of prohibition should be granted to restrain the execution of the surrender warrant pending the determination of his communication with the UN Committee and the applicant's ongoing litigation. The applicant has provided six grounds in support of his application as follows: 1. The applicant has a legitimate expectation that the Minister will act in conformity with Australia's obligations under the United Nations Convention against Torture and Cruel, Inhumane or Degrading Treatment or Punishment ('the Torture Convention'). 2. The proposal to remove the applicant from this jurisdiction before a final determination is made by the UN Committee in respect of his communication would be inconsistent with Australia's Convention obligations. 3. Chapter III of the Australian Constitution gives rise to a legitimate expectation that the extradition would be stayed until the applicant's communication with the UN Committee has been determined. 4. The Minister proposes to act inconsistently with the legitimate expectations referred to above. 5. The applicant would be denied procedural fairness if the Minister acted inconsistently with obligations under the Torture Convention referred to above and did not provide notice of such action to the applicant and did not provide the applicant with an opportunity to respond. 6. The Minister took into account irrelevant considerations being the Minister's reference to the fact that the applicant lodged the communication with the UN Committee only after the surrender determination had been made, and failed to take into account relevant considerations being the applicant's communication with the UN and the applicant's ongoing litigation. 9 Before dealing with the issues raised by the applicant the Court notes that on 26 October 2007 an order was made under Order 80 of the Federal Court Rules 1979 (Cth) that legal assistance be made available to the applicant. The Court adjourned these proceedings until 31 October 2007 to enable the applicant to obtain legal advice. After a brief conference with the applicant, appointed counsel sought leave to withdraw from appearing in the proceedings. The proceedings were adjourned until 1 November 2007 to enable the applicant to formulate his submissions.

Applicant's submissions 10 The applicant submitted that the decision which he was challenging was not the surrender decision under s 22 of the Extradition Act which had already been the subject of challenge before Moore J, the Full Federal Court and the High Court. Rather, his challenge is made to the Minister's decision to proceed to execute the surrender warrant before the applicant's communication with the UN Committee has been determined and while the applicant's ongoing litigation remains unresolved. 11 The applicant submitted that Article 3 of the Torture Convention entitles him to remain in Australia pending the determination of the UN. Article 3 provides:

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

12 The applicant also relies upon Article 22(1) of the Torture Convention which provides: A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.

and Article 22(5)(b) of the Torture Convention which provides that the committee shall not consider a communication from a person unless it is satisfied that: The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.

13 The applicant also refers to Article 28 of the Torture Convention which allows a party to declare at the time of ratification that it does not recognize the competence of the committee as provided in Article 20 and relies upon the fact that Australia has made no such reservation. 14 The applicant submits that Australia's ratification of the Torture Convention has the consequence that it is obliged to act in accordance with the Convention in its decision making. He relies upon a letter from the UN dated 30 April 2007, in answer to the communication made on his behalf. Such letter relevantly states: I have the honour to inform you that the complaint dated 5 April 2007, which you submitted on behalf of Mr. Lawrence John Rivera to the Committee against Torture for consideration under article 22 of the Convention against Torture has been registered as complaint No. 316/2007. You are kindly requested to refer to this registration number in any further correspondence.

Pursuant to Rule 109 of the Committee's Rules of Procedure, a copy of the complaint has been sent to the State party, with the request that any information or observations concerning the admissibility and the merits should reach the Committee within six months, that is by 31 October 2007. If the State party wishes to challenge the admissibility of the complaint, it is invited to provide, within two months, written information and observations in respect of it.

After reviewing the case, the Special Rapporteur on New Communications and Interim Measure has decided not to issue a request for interim measures.

Any reply received from the State party will be communicated to you in due course to enable you to comment thereon, if you so wish.

15 The applicant submits that Chapter III of the Australian Constitution provides a foundation for his legitimate expectation that he would be permitted to conduct outstanding litigation before the execution of the surrender warrant. He relies upon the dissenting judgment of Kirby J in Vasiljkovic v The Commonwealth of Australia and Others (2006) 237 CLR 614 especially at [157]-[159] and submits that the act of the Executive arm of government in executing the warrant for surrender interferes with the role of the Judiciary. The applicant further submits that it is immaterial to his legitimate expectation arising under Chapter III of the Constitution that his communication to the UN Committee was made subsequent to the surrender decision. 16 The applicant submits that Australia's ratification of the Torture Convention also provides the foundation for a legitimate expectation that Australia's Convention obligations would prevail over the Minister's decision to execute the surrender warrant. In support of such submission the applicant relies upon the decision of the High Court of Australia in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, especially the observations of Mason CJ and Deane J at 290-291 where there Honours said: Junior counsel for the appellant contended that a convention ratified by Australia but not incorporated into our law could never give rise to a legitimate expectation. No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law is a less than compelling reason - legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act (45), particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (46) and treat the best interests of the children as "a primary consideration". It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.

17 Relying upon such extract, the applicant submits that Australia's obligations to act in accordance with the provisions of the Torture Convention are embodied in domestic law. Further, those obligations must be given full effect since Australia is a party to the Vienna Convention on the Law of Treaties ('the Vienna Convention') and pursuant to Article 43 of the Vienna Convention Australia is bound to give effect to the Torture Convention. Article 43 provides: The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.

18 Article 26 thereof reinforces the above obligation and provides: Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

19 The applicant further submits that between April 2007 and September 2007 the Minister did not give any indication that he would execute the surrender warrant without first providing the applicant the opportunity of having his communication determined by the UN Committee. Had he had such opportunity, the applicant says he would have sought the application of interim measures which were referred to in the UN letter detailed above. The applicant claims that by implication Australia's obligations would require it to abide by the provisions of Article 3(2) of the Torture Convention. In support of such submission the applicant relies upon Nagaratnam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 569 at 580 where Lee and Katz JJ referred to Australia's ratification of the Torture Convention and particularly to Australia's obligation under Article 3(1) of the Torture Convention. The applicant also relies upon the inaction of the Minister in failing to avail itself of the opportunity to move to strike out the applicant's present application before this Court upon the ground that it disclosed no reasonable cause of action. 20 Additionally, the applicant submits that he was not able to lodge his communication with the UN Committee prior to the Minister's s 22 decision because, by virtue of Article 22(5)(b) of the Torture Convention, the UN Committee would not consider any communication from an individual until the individual has exhausted all available domestic avenues of review. The applicant says that the torture he suffered in California at the hands of the police before he left the US 'satisfies the definition of torture' in Article 1 of the Torture Convention which includes 'any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person'.

Is there a decision to which a writ of prohibition can apply? 21 Significantly, the applicant has emphasised that he does not challenge the Minister's decision to issue the surrender warrant under s 22(2) of the Extradition Act. If such decision is not challenged, the question remains whether there is another decision made by the Minister in respect of which the relief sought can be granted. 22 The stages in the legislative extradition scheme were described in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389, which was referred to by the Full Court in Rivera [2007] FCAFC 123. For convenience, the Court will restate the process as quoted from Harris 52 FCR 389 by the Full Court as follows: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered. 23 When a valid surrender determination is made under s 22(2) of the Extradition Act, mandatory statutory provisions then operate for the implementation of the extradition process and pursuant to s 23 of the Extradition Act, a warrant must issue for the surrender of a person. There is no opportunity for any further decision to be made by the Minister. It follows that there is no decision by the Minister, other than that which the applicant has already unsuccessfully challenged, in relation to which a writ of prohibition can apply.

Is the applicant entitled to injunctive relief? 24 The relief which the applicant seeks in his Application to restrain the Minister from taking any action on the surrender warrant is identical to the relief he sought before this Court in his application filed on 6 September 2006. Such claim was determined by the Full Federal Court on 9 August 2007. Accordingly, the applicant's application for such relief seeks to re-litigate an issue which has been determined adversely to him.

Is the Minister required to act in accordance with the Torture Convention? 25 The applicant claims that the Minister must act in accordance with the objects of the Torture Convention, and that this would prevent the Minister from extraditing the applicant pending the UN Committee's determination of the communication. However, the protection provided by Article 3(1) of the Convention which directs a State not to expel, return or extradite a person to another State where there are substantial grounds for believing that such person might be subjected to torture, is provided in Australian domestic law by s 22(3)(b) of the Extradition Act. Such provision provides that when making the decision under s 22(2) of the Extradition Act the Attorney-General must be satisfied that, on surrender to the extradition country, the person will not be subjected to torture. Accordingly it is inherent in the Minister's surrender decision that he possessed such level of satisfaction, and such requirement addresses the obligations of Article 3(1) of the Convention. In these proceedings the applicant has not claimed that the Minister did not comply with the requirements of s 22(3)(b) of the Extradition Act. 26 The statements contained in Teoh 183 CLR 273 relied upon by the applicant do not assist him in the present proceedings. The ratification of an international convention gives rise to a legitimate expectation that 'the executive government and its agencies' will act in conformity with the terms of such convention, absent 'statutory or executive indications to the contrary' (see Teoh 183 CLR 291). There is no scope for argument that the Minister has not acted in conformity with the provisions of the Torture Convention by ignoring the possibility of torture on return, since provisions to safeguard such consequence have been enacted in domestic legislation by s 22(3)(b) of the Extradition Act. The Minister is bound to follow the provisions of the Extradition Act, which he did, and as such there is no basis upon which the claimed breach of procedural fairness brought about by a legitimate expectation of conformity with the Torture Convention could arise.

Was the Minister obliged to inform the applicant of the proposed extradition? 27 The affidavit of Ms Kristy Lee Alexander, solicitor for the Minister, sworn on 29 August 2007, filed in the High Court in support of an application for expedition of the applicant's application for special leave, states the action proposed to be taken by the Minister once the applicant's application for special leave to the High Court had been determined. However, such action did not involve the making of any further decision by the Minister as the implementation of the extradition process had been invoked by the decision made under s 22(2) of the Extradition Act. Rather the affidavit simply described the steps which would be taken to complete the extradition. No obligation existed upon the Minister to inform the applicant of such procedures.

Does the communication to the UN provide a basis for delaying extradition? 28 By letter dated 16 April 2007 to the UN the applicant requested that he be provided with some documentation which he might use at the hearing before the Full Federal Court on 18 May 2007 for the purposes of his appeal. The letter asserts that racial segregation is a form of torture, and after seeking information upon the question whether racial segregation in prisons in California constitute 'torture' within the Convention definition the letter states: As I understand it, the Committee only meets twice a year to determine filed communications. I appreciate that this process may be lengthy. However, my appeal will be heard on 18 May 2007. I kindly ask if your office could provide me with something tangible to put before the Australian court that would show the Committee's provisional view on my prospects of success involving the outcome of this communication.

29 Despite such inquiry there has been no request made to the Minister by the UN Committee for any interim measures as referred to in the letter. There is no requirement imposed by Article 22 of the Torture Convention for a State to stay the implementation of its extradition procedures pending the outcome of any communication made by an applicant to the UN, or the completion of any litigation of the type engaged in by the applicant. 30 The decision of the Full Federal Court in Nagaratnam 84 FCR 569 is not authority for the proposition argued by the applicant, namely that Australia has an obligation to allow the UN Committee to determine communications such as that made by the applicant prior to the execution of a surrender warrant. Whilst reference was made in that decision to Article 3(1) of the Torture Convention, no reference was made to the statutory requirement provided in s 22(3)(b) of the Extradition Act. Even if Australia were in breach of its international obligations under Article 3(1) of the Torture Convention, this is a separate issue which does not impact upon the rights of the applicant which are governed solely by Australian domestic legislation. 31 Whilst the applicant relied upon the observations of Kirby J in Vasiljkovic 237 CLR 614 it is clear that his Honour's observations that the Judiciary prevails over the Executive in extradition matters were pivotal to his dissenting judgment. The majority in the High Court held that Part II of the Extradition Act (which incorporates ss 12 to 27 inclusive) is a valid exercise of the power of the Commonwealth. 32 The Minister submits that the applicant is estopped from now seeking to raise his communication to the UN Committee by the doctrine of res judicata, since it was not raised before Moore J as a ground to challenge the Minister's decision, and relies upon Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598 and 602 and Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 146 FCR 10 at [36]-[54]. The applicant submits that he could not have lodged his communication with the UN prior to the delivery of his Honour's judgment, since he was required by Article 22(5)(b) of the Torture Convention to first 'exhaust all available domestic remedies'. 33 Since the hearing and delivery of Moore J's decision occurred prior to the applicant making his communication to the UN Committee, the issue could not properly belong 'to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation', as referred to in Wong 146 FCR 10. Accordingly, the doctrine of issue estoppelandres judicata does not apply in relation to the issue of the applicant's communication to the UN before the Full Court hearing the appeal from Moore J's decision. The Court considers that the applicant is not estopped from raising such issue in this application.

CONCLUSION 34 The Court finds that there is no scope for the application of the doctrine of legitimate expectation as claimed since the obligations of Australia concerning extradition are wholly contained in the Extradition Act. There has been no claim of ambiguity in the provisions of the Extradition Act and the decision of the Minister made pursuant to it is not the subject of challenge by the applicant. Further there is no decision in respect of which a writ of prohibition could issue. To obtain a grant of injunctive relief the applicant must show the existence of a legal or equitable right, the protection of which the grant of such relief could ensure: see Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at [91]. No such rights exist. For the reasons provided above, the applicant has no basis for relief. 35 It follows that the proceedings must be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 14 November 2007 Counsel for the Applicant: The applicant appeared in person

Solicitor for the Respondent: Australian Government Solicitor