The Croatian response
184 The question here is whether Mr Snedden was denied procedural fairness - was there practical injustice - because he was not provided with the Croatian response, or information contained in it, and was therefore not given an opportunity to reply to it? This in turn raises two issues for consideration.
185 First, did procedural fairness in the circumstances require that Mr Snedden be given an opportunity to consider and reply to the Croatian response irrespective of the content of the Croatian response? This is important given the apparent acceptance by the primary judge that the Croatian response may have "raised no new considerations": Judgment at [42]. Her Honour appears to have accepted that Mr Snedden had a right of reply irrespective of the content of the Croatian response and, having been denied that right, was denied procedural fairness.
186 Second, was there any adverse information in the Croatian response that was both new (not previously known or addressed by Mr Snedden) and credible, relevant and significant to the Minister's decision? If there was, it appears to be common ground that it may have been necessary to disclose that information (though not necessarily the entire Croatian response) to Mr Snedden. The primary judge did not appear to approach the matter this way. That may have been because before her Honour, Mr Snedden appears to have approached the matter at a high level of generality. He took the same approach on appeal. Whilst Mr Snedden submitted that the Croatian response contained adverse information, little if any attempt was made to descend to any level of detail.
187 In relation to the first question, lawyers steeped in the procedures usually adopted in adversarial proceedings in courts of law might instinctively think that Mr Snedden should have been given a right of reply. But the extradition process, whilst adversarial in some respects, is not a judicial proceeding in a court. The context is quite different. Likewise, whilst it may perhaps have been prudent for the Minister, adopting a cautious stance, to provide Mr Snedden with the Croatian response, it does not necessarily follow that he was required to do so to ensure procedural fairness in the circumstances
188 As previously indicated, the Act does not prescribe any particular procedure for the Attorney-General or Minister to follow when making a s 22 determination. It is a matter for the Attorney-General or Minister to adopt a procedure that is fair to both the extradition country and the eligible person and avoids any practical injustice. Here, the procedure adopted by the Department, on the Minster's behalf, was to first invite Mr Snedden to make any representations he would like to make. By letter dated 14 May 2010 the Department wrote to Mr Snedden and invited him to make representations. The letter relevantly stated:
You are entitled to make representations to the Minister as to why you should not be surrendered to Croatia. Any relevant representations you make will be brought to the Minister's attention when he makes his determination under section 22 of the Act.
…
Information you provide may be disclosed to law enforcement or other government agencies in Australia or other countries if that is considered necessary by the Department or the Minister to determine the weight to be given to that information in the extradition determination.
189 Three points should be made in relation to this letter. First, the letter did not seek to confine the nature or scope of the representations that Mr Snedden could make. By this stage the matter had already passed through three stages of the extradition process. It had already been the subject of litigation and judicial review. Representations and submissions had already been made by and on behalf of Mr Snedden at the earlier stages and in the associated reviews and litigation. It was, in any event, open to Mr Snedden to raise again any or all of the matters previously raised, or any new matters he wished to raise, in his representations to the Minister. He "had the opportunity to define the ambit of the issues which he regarded as being relevant to the Minister's decision, and to provide such information and submissions as he saw fit": Hala at [57]. Importantly also, as a result of submissions made by or on behalf of Croatia and the Minister at the earlier stages of the process and the various review applications, Mr Snedden already knew the likely response to many of his submissions.
190 Second, the letter made it clear that the Minister might disclose Mr Snedden's representations to Croatia for comment or response. It is at least implicit in what is said in the letter that any response provided by Croatia might affect or be relevant to the weight ultimately given by the Minister to any of the information provided by Mr Snedden.
191 However, and this is significant, the letter did not represent (either expressly or implicitly) that the Minister would necessarily respond further to Mr Snedden following any response by Croatia. Further, the letter did not represent (either expressly or implicitly) that Mr Snedden would necessarily be given the opportunity to respond to any response by Croatia.
192 Third, the Department did not otherwise indicate to Mr Snedden that he would be given any further opportunity to reply to any response the Department might receive from Croatia. Indeed, it is implicit that Mr Snedden would not be given a right of reply. Despite knowing that the Department might seek a response from Croatia, Mr Snedden never expressly requested that he be provided with that response or that he be given an opportunity to reply to it.
193 It is true that by letter dated 24 June 2010, Mr Snedden's solicitors asked that Mr Snedden be given the right to respond to material facts and assumptions that may lead to an adverse decision. That general request, however, did not amount to a specific request that Mr Snedden be given a right of reply to any response by Croatia. Nor did it suggest that Mr Snedden was operating under any assumption that he had an automatic right of reply.
194 As outlined earlier in these reasons, Mr Snedden did respond to the Department's invitation and availed himself of the opportunity to make representations. He did so with considerable gusto. Numerous representations were made by or on behalf of Mr Snedden in the months that followed. They were voluminous. They addressed numerous issues and contained a good deal of information. The Department distilled from the representations eight issues in respect of which it sought Croatia's response. Croatia then provided a response to the eight issues.
195 The specific content of the Croatian response will be addressed in some more detail later in these reasons. Suffice it to say at this stage that in Hala, Siopis J held, in relevantly identical circumstances, that the requirements of procedural fairness did not oblige the Department to refer a response it received from the extradition country to the person whose extradition was being sought for further comments. His Honour said (at [59] and [60]):
In my view, this is an example of a circumstance referred to by Gleeson CJ in Lam…of where the dealings between the parties is relevant in determining the content of the obligation to provide procedural fairness.
It is possible to contemplate a circumstance where the response of the extraditing country may raise an issue which is not at all germane to the issues raised by the eligible person. As anticipated in the Brock decision, this may give rise to an obligation upon the department to give the eligible person an opportunity to comment upon this extraneous issue. However, this is not the kind of case advanced by the applicant. Here the applicant complained about the denial of an opportunity to deal with matters which fell squarely within the issues identified in his initial submissions, namely, the extraordinary delay between the alleged offences, the commencement of criminal proceedings and the retrial, the Czech Republic's knowledge of his whereabouts and its culpability for the delay, the unfairness attendant thereupon, and whether the applicant had left the Czech Republic as a fugitive.
196 Siopis J referred to earlier decisions of the Court which supported the proposition that there was no absolute right of reply in these circumstances. In Foster, the Department did invite the eligible person to respond to some specific information that had been provided by the extradition country. But given that Mr Foster had already made extensive submissions on the s 22(3) issues, the Full Court said (at [70]) that it was questionable whether procedural fairness required that any further opportunity be given to Mr Foster to make submissions.
197 In Santhirarajah, like here, the Department wrote to the extradition country, the United States of America, outlining the eligible person's contentions and seeking a response. North J found (at [331]) that the response contained information not otherwise known to Mr Santhirarajah, including the extradition country's version of the circumstances leading to the arrest of Mr Santhirarajah's co-accused. The Department provided a brief to the Minister which included that information. Nevertheless, North J rejected the contention that there had been a denial of procedural fairness. His Honour said (at [339]):
Similarly, the applicant's argument that there was a denial of procedural fairness because he was not shown the US Department of Justice letter of reply dated 14 September 2009, or expressly made aware of its contents should not be accepted. The applicant did not contradict the Attorney-General's submission that the material in the letter was disclosed in the s 19 hearing. In any event, it was reasonable for the Department to determine that the process to be followed would be to seek representations from the applicant and then to seek a response from the US Department of Justice.
198 The Full Court in Brock considered a slightly different situation. The person whose extradition was being sought, Mr Brock, had made detailed submissions to the Department contending that there had been a material error or deficiency at the s 16 stage. In its brief to the Minister, the Department provided a comment that essentially refuted Mr Brock's contention. Mr Brock claimed that procedural fairness required that he be given an opportunity to reply to that comment. Downes J (with whom Yates & Katzmann JJ agreed) rejected the argument and observed (at [22]):
What amounts to want of procedural fairness depends on the circumstances of each case. In its broadest sense procedural fairness, where it applies, permits a subject "to know the case sought to be made against him and to be given an opportunity of replying to it" (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582 per Mason J). It does not require a decision-maker to put every nuance of what the decision-maker is considering for comment just as judges are not required to produce draft reasons for judgment for comment. If a decision-maker proposes to act on new considerations or new matters, not known to the subject, giving the subject an opportunity to comment will generally be appropriate. However, the matters said to attract procedural fairness in this case were at the heart of Mr Brock's arguments. They were comprehensively dealt with in Mr Brock's well-written submissions. Although Mr Brock did not, of course, refer to the departmental comment, his submissions put his arguments against their conclusion.
199 The primary judge here found that Mr Snedden was entitled to be informed about "what Croatia put against him", apparently even if it raised "no new considerations": Judgment at [42]. Mr Snedden (before the primary judge and this Court) did not point to any new adverse information in the Croatian response. Mr Snedden did not suggest that there was any new information that was credible, relevant and significant to the Minister's decision. In fact, as the primary judge seemed to accept, that Croatia's letter was purely responsive.
200 For the reasons given by Siopis J in Hala, if the Croatian response raised any new issue, or contained any new piece of information, not previously known to Mr Snedden, that was adverse to his interests and credible, reliable and significant to the decision, procedural fairness may have required that Mr Snedden be advised of that new issue or new information. That may not have required the entire response to be provided to Mr Snedden. But it may have required, at least, that Mr Snedden be given the opportunity to comment on the new adverse information.
201 If, however, the Croatian response did not contain any new adverse information but simply refuted, or provided information to rebut, contentions that had been advanced by Mr Snedden, it was unnecessary to provide it to Mr Snedden at all. There would, in such circumstances, be no practical injustice. Mr Snedden had been given an opportunity to make whatever representations he wished to make. He had no reason to expect he would be given a further opportunity. Given the course the extradition process had already taken, it could hardly be said that Mr Snedden would have expected Croatia to do anything other than refute many of the contentions he had advanced.
202 It should be noted in this context that the mere fact that the Ministerial brief contained references to the Croatian response does not mean that the Croatian response contained information that was relevantly new, adverse and significant to the Minister's decision.
203 It is necessary to consider whether the Croatian response did, in fact, contain any new adverse information. If it did, the failure to provide Mr Snedden with an opportunity to comment on that specific piece of new information may amount to a denial of procedural fairness
204 In his written and oral submissions, Mr Snedden pointed to certain paragraphs in Attachment G that contain summaries of parts of the Croatian response. He submits, in effect that because Attachment G referred to parts of the Croatian response, those parts were relevantly adverse to his interests. The mere fact that Attachment G refers to parts of the Croatian response does not make those parts adverse information that procedural fairness required to be disclosed to Mr Snedden. In VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 (VHAP), Allsop J (with Gyles and Conti JJ agreeing at [17]) said the following in relation to such reasoning (at [27]):
Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.
205 It is necessary to pay some close attention to the material in the parts of Attachment G highlighted by Mr Snedden to determine whether there was any new and adverse information which needed to be disclosed to Mr Snedden in all the circumstances.
206 It is important to recall that the ultimate issue is whether Mr Snedden had a fair opportunity for correcting or contradicting anything adverse to his interests. For this to occur, Mr Snedden needed to be made aware of any material adversely affecting him, and upon which he had not already been given a fair opportunity to respond.
207 Before turning to the specific passages in Attachment G, three general observations can be made. First, with possibly two exceptions, none of the information in the passages relied on by Mr Snedden is information concerning Mr Snedden himself or his personal circumstances. Rather it is information concerning aspects of Croatian law and criminal procedure and practice. That information is at a high level at generality, largely uncontroversial and in the public domain. Second, each piece of information is directly responsive to contrary contentions advanced in Mr Snedden's representations. And third, virtually all of the information relates in some way to issues and contentions that were the subject of extensive submissions in the various proceedings in the Local Court, this Court and the High Court to which Mr Snedden was a party in the course of the extradition process.
208 The first passage of Attachment G pointed to by Mr Snedden is at paragraphs 254 to 256. This is one of the instances where the information is personal to Mr Snedden. The information in these passages is responsive to Mr Snedden's representation that there was an unexplained delay before Croatia sought his extradition. The information included the fact that the alleged offences by Mr Snedden had been the subject police inquiries and police reports in 1992 and 2005.
209 This information was neither new nor material. The extradition request itself referred to police inquiries and the filing of the 2005 report. The request had been the subject of submission and debate at the earlier stages of the extradition process in this Court and the High Court. There is no reference in the request to the earlier 1992 report. However that is of no moment whatsoever. The passages of Attachment G which follow those relied on by Mr Snedden, including the Department's comment, reveal that nothing turned on the fact that there may have been an earlier 1992 report. It is difficult to see how it could possibly have been of any relevance to the Minister's decision and even more difficult to see what Mr Snedden could have said about it if given the opportunity to comment further. We make this observation mindful of the caution made by Megarry J in John v Rees (1970) Ch 345 at 402, and referred to by the primary judge at [43], but a practical and common sense approach should be taken to administrative decision-making taking into account the context as we have previously explained. We also appreciate that the content of the duty to accord procedural fairness does not depend upon what Mr Snedden may or may not be able to say in reply upon being provided with adverse material. However, the content of the duty does depend on a practical approach, taking into account the opportunities Mr Snedden has already been given in the process undertaken by the Department and the Minister, and Mr Snedden's responses in the course of that process.
210 Otherwise, the passages of paragraphs 254 to 256 include very general information about Croatia's Criminal Procedure Act and the fact that war crimes proceedings in Croatia are closely monitored. Both matters had been the subject of discussion and debate at earlier stages of the extradition process and in Mr Snedden's detailed representations. There is no relevantly new issue or information in these passages. The passages in Attachment G that follow those relied on by Mr Snedden reveal that this information was, in any event, highly unlikely to have been material to the Minister's decision.
211 The next passage pointed to by Mr Snedden is paragraph 270 of Attachment G. It contains Croatia's response to Mr Snedden's contention that the extradition request is politically motivated. The information is as follows:
Croatia has advised that the extradition of [Mr Snedden] is requested because of the well-founded suspicion that he committed very serious criminal offences, namely 'crimes against values protected by international law (war crimes)'. Croatia has further advised that those accused of war crimes are held responsible regardless of their political and other beliefs, and regardless of their nationality.
212 This information was not new and did not raise a new issue. Mr Snedden's contention that the extradition was politically motivated, and Croatia's response to it, was considered in earlier proceedings in this Court and in the High Court. The first part of this information is the information that is contained in the extradition request itself.
213 Mr Snedden next points to paragraphs 294 to 296 of Attachment G. These paragraphs summarise Croatia's response to Mr Snedden's contention that there is a lack of reciprocity and mutuality in the extradition relationship between Australia and Croatia. Mr Snedden relies on two differences. First, Croatia can refuse to extradite its citizens whereas Australian law permits the extradition of its citizens. Second, Croatia requires requests from Australia to include prima facie evidence, whereas Australia does not require prima facie evidence from Croatia.
214 Croatia's response in substance confirms that these differences in fact exist. That is hardly adverse to Mr Snedden. It in fact provided some level of support for his representation. The following paragraphs of Attachment G, however, reveal why it was open to the Minister to form the view that these differences were ultimately immaterial to whether Mr Snedden should be surrendered to Croatia.
215 The next passages relied on by Mr Snedden are at paragraphs 320 to 325 of Attachment G. These paragraphs summarise Croatia's response to Mr Snedden's representations that he was not accused of an offence for the purposes of the Act because he was only wanted for questioning for investigative purposes in Croatia. Mr Snedden's representations in this respect were based on Zentai v Honourable Brendan O'Connor (No 4) [2010] FCA 1385 which was subsequently overturned in O'Connor v Zentai (2011) 195 FCR 515 (Zentai). The Croatian response includes some information personal to Mr Snedden. It refers to the criminal process on foot in Croatia against Mr Snedden. It refers to a ruling by a judge of the County Court made on 12 December 2005. This was not, however, new information. This ruling is in fact referred to at length in the extradition request.
216 The balance of the information concerns the general nature of criminal proceedings in Croatia. As Croatia is a civil law system, the nature of criminal proceedings differs from proceedings in Australia. The information in substance confirms that, if surrendered to Croatia, Mr Snedden would be examined by an investigative judge. Again, that is hardly adverse to Mr Snedden. In substance it again provided some factual support for his representations. The following paragraphs of Attachment G, however, demonstrate why, in the light of the Full Court decision in Zentai, it was open to the Minister to find that Mr Snedden's representations did not provide a sound basis for a decision that Mr Snedden not be surrendered.
217 It should also be noted that Mr Snedden's argument that he was not an extraditable person because he was only wanted for questioning was the subject of submissions and debate in Mr Snedden's habeas corpus proceedings. Mr Snedden was aware of the position taken by the Minister in respect of this issue. This was not, in any sense, a new issue.
218 Next, Mr Snedden points to paragraphs 368 to 379 of Attachment G. These paragraphs summarise Croatia's response to Mr Snedden's claim that, for a number of different reasons, he would not receive a fair trial in Croatia. This again was not a new claim. Mr Snedden's representations were in substance a redevelopment or restructure of submissions he had previously made concerning extradition objections at earlier stages of the extradition process.
219 Croatia's response contains information at a high level of generality concerning war crimes prosecutions in Croatia. It includes references to obviously publicly available reports and provisions of the Criminal Procedure Act. These were all matters that Mr Snedden had already had the opportunity to make representations in relation to earlier in the extradition process: cf. SZQHH at [30]. They were all matters that were "clearly on the table to be addressed" by Mr Snedden in his initial representations: VHAP at [17] (Gyles and Conti JJ). Fairness did not require him to have another opportunity to make representations about this general and publicly available information.
220 Exactly the same can be said concerning the next paragraphs highlighted by Mr Snedden. Paragraphs 393 to 397 of Attachment G summarise Croatia's response to Mr Snedden's claim that he will not be safe if extradited to Croatia. Mr Snedden's claim was that he cannot or will not be safely held in custody in Croatia. The information provided by Croatia was again no more than general information concerning the Criminal Procedure Act and various regulations, all of which were contained in Croatia's publicly available official Gazette. None of this information was personal to Mr Snedden. None of this publicly available information was new. None of it was relevantly adverse. Fairness did not require Mr Snedden be given a further opportunity to make submissions in relation to this information.
221 Finally, Mr Snedden relies on two passages in Attachment G that can conveniently be dealt with together. Paragraphs 405 to 408 and 414 to 417 contain the substance of Croatia's responses to Mr Snedden's contentions that the extradition request contained incorrect references to the Criminal Procedure Law and relevant offence provisions in Croatia. Croatia's response simply refutes this contention by referring to the relevant versions of the Criminal Procedure Act and Basic Criminal Code, all of which are publicly available because they are published in Croatia's official Gazette. Fairness did not require Mr Snedden to be given a further opportunity to address this publicly available information for the reasons previously given.
222 It follows that Mr Snedden was not denied procedural fairness as a result of not being provided with the Croatian response or any information contained within it. There was no absolute requirement to provide Mr Snedden with a right of reply. The procedure adopted by the Minister was in all the circumstances fair and reasonable. Mr Snedden was advised of this procedure. He was not told that he had a right of reply. Mr Snedden was given ample opportunity to make appropriate and relevant representations at the s 22 stage. There was no new information within the Croatian response that was adverse, credible, relevant and significant such that procedural fairness required the Minister to provide that information to Mr Snedden for comment. No practical unfairness flowed from the fact that Mr Snedden was not given the opportunity to make a further round of representations based on any information contained within the Croatian response.
223 Therefore, the primary judge was in error in finding that Mr Snedden was not accorded procedural fairness.
224 It should be emphasised that the conclusion that, given the content of the Croatian response, there was no "practical injustice" (cf. Lam at [37]) and therefore no denial of procedural fairness, has nothing to do with the discretionary denial of relief. The primary judge correctly pointed out (Judgment at [43]) that if there had been a denial of procedural fairness, Mr Snedden was entitled to relief unless the Court is persuaded that the breach could not have had any bearing on the outcome: Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 (Dagli). But here, the absence of any practical injustice meant that there was no breach. The procedure adopted by the Minister was fair and reasonable. In all the circumstances, fairness did not require anything in the Croatian response to be put to Mr Snedden for further comment. The authorities, such as Dagli, that relate to the discretionary refusal of relief are accordingly of no relevance.
225 The Minister has accordingly made out the ground of his cross-appeal that the primary judge erred in holding that there was a denial of procedural fairness arising from the Croatian response.