Rojas v United States of America

1. The originating application be dismissed, with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an appeal under s 21 of the Extradition Act 1988 (Cth) (Act) brought by way of an originating application. It seeks limited merits review of a decision of a judge of the Federal Circuit Court of Australia, as provided for by s 21. On 9 August 2018, the primary judge determined that the respondent, Mr Edgar Andres Viloria Rojas, a citizen of Venezuela, was eligible for surrender to the United States of America. 2 This merits review proceeding focuses upon the requirements imposed by s 19(2) of the Act in relation to the sufficiency of the information provided as to the conduct said to constitute the offence for which extradition is sought, and the meeting of the "dual criminality" requirement for extradition that such conduct would constitute the commission of an offence in Australia. 3 The procedural history is as follows: (1) On 9 September 2017, a United States federal grand jury in Nevada indicted 36 members of an organisation known as "Infraud" on a charge of "conspiracy to engage in a racketeer corrupt influenced organization", apparently derived from the Racketeer Influenced and Corrupt Organizations Act (RICO), contrary to Title 18, United States Code, s 1962(d). One of those indicted was Mr Rojas. (2) On 31 October 2017, the same grand jury returned a superseding indictment, which added further charges, but not against Mr Rojas, and an arrest warrant for Mr Rojas was issued by the United States District Court in Nevada. (3) On 4 December 2017, an extradition arrest warrant was issued in respect of Mr Rojas, under s 12(1) of the Act. On 6 February 2018, he was arrested on that warrant. He has been remanded in custody under s 15(2) of the Act ever since. (4) On 22 March 2018, the United States requested the extradition of Mr Rojas, in order to prosecute him for the RICO offence. (5) On 30 March 2018, the Commonwealth Attorney-General gave a notice under s 16 of the Act that the extradition request had been received. (6) On 23 May 2018, the United States applied for extradition proceedings to be conducted under s 19 of the Act. (7) On 20 July 2018, the primary judge, siting administratively as an "eligible Federal Circuit Court Judge", conducted proceedings under s 19 of the Act. (8) On 9 August 2018, the primary judge determined that Mr Rojas was eligible for surrender and issued a warrant ordering that he be committed to prison under s 19(9) of the Act to await surrender under a surrender warrant, or release pursuant to s 22(5) of the Act. (9) On 23 August 2018, Mr Rojas commenced this appeal by way of an originating application, seeking to have the primary judge's order quashed pursuant to s 21(2)(b) of the Act. 4 An important part of Mr Rojas' case below and in this review is that he is a citizen of Venezuela, and has never been to the United States. He was lawfully in Australia on a student visa when he was arrested consequent upon the request for extradition. This review raises questions as to whether the primary judge erred in concluding that asserted extraterritorial impediments were not made out, and/or erred in concluding that the description of Mr Rojas' conduct was sufficient for the purposes of making a finding of eligibility for surrender. 5 Section 19(2) of the Act provides: For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if: (a) the supporting documents in relation to the offence have been produced to the magistrate or Judge; (b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate or Judge of any other documents - those documents have been produced to the magistrate or Judge; (c) the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and (d) the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence. 6 The content of the obligation to produce supporting documents to the magistrate or judge in s 19(2)(a) and (b) is provided by s 19(3), of which only paragraph (c)(ii) is relevant in this case. Section 19(3)(c)(ii) provides that the "supporting documents" in relation to an extradition offence must include "a duly authenticated statement in writing setting out the conduct constituting the offence" (conduct statement). This in turn picks up the extradition treaty requirement to describe the facts and "[set] forth reasonable grounds for believing that an offence has been committed and that the person sought committed it": Article XI(3)(c) of the Treaty on Extradition between Australia and the United States of America, as replaced by Article 7 of the Protocol amending that treaty. 7 There is no issue as to authentication. 8 In relation to the requirements of a conduct statement, and the requirements of dual criminality, the primary judge relied upon Griffiths v United States of America [2005] FCAFC 34; 143 FCR 182. The Full Court's pithy summary of six statements of principle emerging from prior authority as to what it described as "well-accepted propositions concerning what is required of, and what is the purpose of, a statement of conduct both for s 19(3)(c)(ii) and (2)(c) purposes" was is as follows (at [49]-[55]): (i) As already noted, it is well-accepted that the statement "setting out the conduct constituting the offence" for s 19(3)(c)(ii) purposes may consist of a number of documents: Dutton v O'Shane [[2003] FCAFC 195; 132 FCR 352] at [105]. For this reason it is permissible to have resort to all of the "supporting documents" to ascertain what that conduct is. (ii) Section 19(3)(c)(ii) requires a statement of the "acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed": s 10(2). A bare description or definition of the offence will not suffice: De Bruyn v Republic of South Africa (1999) 96 FCR 290 at [8] ff; McDade v United Kingdom [[1999] FCA 1868 (Full Court)] at [16]. As was said by Gleeson CJ and McHugh and Heydon JJ in the s 42 ("speciality") case of Truong v The Queen (2004) 78 ALJR 473 at [29]: The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other. (iii) The statement must speak with sufficient specificity, clarity and coherence to serve its purpose: cf Linhart v Elms (1988) 81 ALR 557 at 583. Hence, as Kenny J said in McDade at [17] [with whom French and Marshall JJ agreed]: Having regard to the purposes of a s 19(3)(c)(ii) statement, a document will not meet the requirements of that provision if it is so vague and general or so disorganised that the relevant acts and omissions cannot be reasonably identified. Whether a statement relied on in satisfaction of that provision is to be accepted as a statement setting out the conduct constituting the relevant extradition offence or offences is essentially a "matter of practical judgment and assessment, not for over-zealousness in discerning deficiencies": Zoeller at 294 and Wiest [(1988) 23 FCR 472] at 519. (iv) The s 19(3)(c)(ii) statement serves a dual purpose. First, the facts relevant to the extradition offence are proved by that statement. Second, because the magistrate making the eligibility determination is confined to the material adduced in the supporting document, the statement must be such as to permit the magistrate to be satisfied that the conduct said to constitute the offence would constitute an extradition offence had it taken place in that part of Australia where the proceedings are being conducted: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 299-300; De Bruyn v South Africa [[1999] FCA 1344; 96 FCR 290 (Full Court)] at [7]. (v) It is not the magistrate's function under s 19 to determine what are the minimum facts necessary to constitute the foreign offence. As was said in Zoeller at 300: That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated. What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii). That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document. All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law. (vi) A consequence of the dual purpose of the s 19(3)(c)(ii) statement is that the level of information and detail the requesting country provides about the conduct constituting the extradition offence may be sufficient to satisfy s 19(3)(c) but be inadequate for s 19(2) purposes. 9 Filed with Mr Rojas' originating application was an affidavit from his then solicitor, raising the following grounds of review in relation to the primary judge's decision: (a) That the decision was in error in holding that s 19(2) of the Act had been satisfied in circumstances in which the United States of America sought to exercise extraterritorial jurisdiction in relation to conduct of the Applicant. (b) That the decision was in error in that the conduct of the Applicant could not be conduct constituting an offence in the State of NSW at the relevant time. (c) That the decision was in error in that inadequate supporting material within the meaning of the Act and the Treaty on Extradition between Australia and United States of America was provided for the purposes of s 19 of the Act. (d) That the Applicant should not in all the circumstances be found to be eligible for surrender to United States of America[.] 10 Mr Rojas therefore asserts that the primary judge erred because, contrary to his Honour's findings: (10) the requirement in s 19(2)(b) was not met, because the conduct statement was inadequate; and (11) the dual criminality requirement of s 19(2)(c) was not met, because there was a lack of jurisdictional connection between the factual allegations made against him and the United States, such that those allegations could never found a successful prosecution according to the law of New South Wales. 11 The primary judge referred to the conduct statement that was before his Honour, principally by way of an affidavit by Mr Chad McHenry, an Assistant United States Attorney, including exhibits annexed to that affidavit, including an indictment. His Honour described the first critical fact described in that affidavit as being that Mr Rojas was a member of a "transnational criminal carding organisation" known as the "Infraud Organisation". His Honour summarised Mr McHenry's description of "carding" as involving "the trafficking of credit card, bank account and other personal information online" as well as "related fraud services". His Honour then summarised, non-exhaustively, the burden of the description by Mr McHenry of Mr Rojas' conduct as follows (at [19]): a) he offered, via private messages and posts on the Infraud forum, to provide a drops service, meaning that he would act as an intermediary to locate an individual to receive stolen merchandise purchased with compromised credit cards; b) he purchased compromised credit card numbers from Organisation members and requested other members to offer USA paypal accounts in bulk for him to purchase; c) he used the exchange services of another member of the Organisation. This person charged a fee to turn e-currency into fiat currency or another digital currency; … d) he used Skype to communicate with other Infraud members; e) he expressed an interest in using bank-drop services which involved a person entering a bank and withdrawing ill-gotten funds from a bank account in order to provide the funds to the person using the service. 12 The submissions for Mr Rojas make only passing reference to the primary judge's reasons, focusing instead on the material that was before his Honour and the conclusions that it is said his Honour should have reached. In relation to dual criminality, Mr Rojas contends that his Honour failed to grapple with the requirements of s 19(2)(c). In relation to the sufficiency of the conduct statement, Mr Rojas contends, in substance, that his Honour failed to find that the affidavit of Mr McHenry fell short of what was required. 13 At the hearing of the review application, senior counsel for Mr Rojas suggested that there were three issues for determination: (1) the proper construction of s 19(2)(c) of the Act; (2) what was said to be a factual question as to the identification of the "true facts" said to support the charges brought against him; and (3) the adequacy of the documents provided in support of the application for extradition.