Timar v Minister for Justice & Customs

Professor Timar was taken into custody on 7 June 2000 and has remained in custody thereafter. On 18 January 2001, Professor Timar's solicitors received a communication that the respondent had made a determination, pursuant to s22 of the Act, that Professor Timar be surrendered to the Republic of Hungary and that a warrant had been issued pursuant to s23 of the Act."

5 The interlocutory judgment at [20] summarised Professor Timar's health problems as follows: · "On 31 October 2000 Professor Timar's right kidney was removed during surgery at St Vincent's Hospital;

· Professor Timar suffers from unstable high blood pressure which requires medication and close monitoring and has been exacerbated since incarceration;

· Professor Timar's high blood pressure is likely, in the long term, to adversely affect his remaining kidney;

· Professor Timar suffers from impaired glucose tolerance, which has implications for cardiovascular problems. He also is at risk of other vascular complications of hypertension."

6 Pursuant to s22 of the Act, the Minister was required to determine whether to surrender Professor Timar to the Republic of Hungary in relation to the alleged offences for which he is sought. While s22(2) of the Act refers to the "Attorney-General" making such a determination, it is not in contest that the power to do so was delegated to the Minister for Customs and Justice, who at the relevant time was Senator Amanda Vanstone. 7 Section 22(2) states: "(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." 8 Section 22(3) defines when an 'eligible person' may be surrendered. For current purposes only s22(3)(e) and (f) are relevant. Section 22(3)(e) states: "(3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if: (e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that: (i) surrender of the person in relation to the offence shall be refused; or (ii) surrender of the person in relation to the offence may be refused; in certain circumstances - the Attorney - General is satisfied: (iii) where subparagraph (i) applies - that the circumstances do not exist; or (iv) where subparagraph (ii) applies - either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and (f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence." 9 Section 11(1)(b) of the Act (referred to in s22(2)(e)) provides for the making of regulations which provide "limitations, conditions, exceptions or qualifications" upon the power contained in s22(2) of the Act. In the current proceeding the Extradition (Republic of Hungary) Regulations 1997 which commenced to apply on 25 April 1997, fashion the exercise of the Minister's power pursuant to s22(2) of the Act. Regulation 4 thereof provides that: "The Extradition Act 1988 applies in relation to the Republic of Hungary subject to the Treaty on Extradition between Australia and the Republic of Hungary (a copy of which is set out in the Schedule)." 10 Article 3.2(f) of the Treaty on Extradition between Australia and the Republic of Hungary ("the Treaty") provides that: "Extradition may be refused … (f) if the Requested State, while also taking into account the nature of the offence and the interests of the Requesting State, considers that, in the circumstances of the case, including the age, health or other personal circumstances of the person whose extradition is sought, the extradition of that person would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment."

11 The judgment of the High Court of Australia in Foster v Minister for Customs and Justice [2000] HCA 38, (2000) 200 CLR 442 ("Foster") offers a very useful guide to the relevant legal principles pertinent to this matter. In Foster the High Court considered the operation of s22(3)(e) of the Act in the context of its qualification by reg 7(1) of the Extradition (Commonwealth Countries) Regulations. Regulation 7 of the Extradition (Commonwealth Countries) Regulations is very similar to Art 3.2(f) of the Treaty in that it requires the Minister to consider the circumstances of the case and whether, with regard to those circumstances, extradition would be "unjust or oppressive or too severe a punishment". In considering the operation of s22(3)(e), Gleeson CJ and McHugh J held at [7]: "There is a double layer of satisfaction involved in s 22(3)(e) and reg 7. The section provides that the eligible person is only to be surrendered if the Attorney-General (or Minister) is satisfied that circumstances engaging a limitation, condition, qualification or exception to surrender contained in the Regulations do not exist. Regulation 7 provides for such a limitation. It prohibits surrender if the Attorney-General (or Minister) is satisfied that it would be unjust, oppressive or too severe a punishment. Therefore, in order to surrender a person the Attorney-General (or Minister) must be satisfied that he or she is not satisfied that it would be unjust, oppressive or too severe a punishment. Since what is involved is the state of satisfaction, or lack of satisfaction, of the one decision-maker, what is critical is whether the decision-maker is satisfied of a matter referred to in reg 7" See also Gaudron and Hayne JJ at [36] and Kirby J at [100]. 12 In the current proceeding, pursuant to ss 22(2)(e) and 11(1)(b) of the Act, it was necessary for the Minister to consider whether the extradition of Professor Timar may be refused under Art 3.2(f) of the Treaty. In other words, the Minister was obliged to consider - with regard to the circumstances of Professor Timar's case, including his age, health or other personal circumstances - whether Professor Timar's extradition would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment. Applying the legal principles outlined above in Foster to the Minister's decision to surrender Professor Timar for extradition, there was a positive requirement upon the Minister to be satisfied that she did not consider that any of the circumstances outlined in Art 3.2(f) existed, or if they did exist, surrender of Professor Timar should nevertheless not be refused. 13 Importantly, in coming to the required "state of satisfaction" with respect to Art 3.2(f), the Minister would have had to make certain subjective value judgments. This was recognised in Foster by Gaudron and Hayne JJ at [38]: "The relevant state of satisfaction is of matters described in qualitative terms which call for the making of value judgments about which reasonable minds may differ."

(i) The competing contentions 14 It was submitted on behalf of Professor Timar that the Minister in purporting to apply Art 3.2(f) superimposed a requirement that Professor Timar "show exceptional circumstances". It was contended that such a test is not one required by the article. 15 The Minister received and acted upon advice from officers within her Department on the appropriate exercise of her power with respect to Professor Timar. At par 12 of the advice dated 5 January 2001, the following was said: "it is considered that the circumstances of this matter are not so exceptional as to recommend refusal of surrender on the nationality or humanitarian grounds under the Treaty." 16 In the actual Grounds for Refusal of Surrender prepared for the Minister, at par 27 thereof, it was recorded that: "we advise that the legal issues do not, in view of the Hungarian authorities' explanation, constitute exceptional matters justifying refusal of extradition on either [Timar's] citizenship and/or humanitarian grounds in the Treaty." 17 At pars 28 and 29 of the same document the following was said: "With respect to the personal issues raised by [Timar], we advise that whilst it is acknowledged that [Timar] is a highly-qualified eminent person recognised internationally in the field of electrical engineering who has recently made Australia his home, there is nothing so exceptional about his personal circumstances as to justify refusal of extradition on the grounds of either [Timar's] citizenship or humanitarian grounds in the Treaty. Notwithstanding [Timar's] good character and his health concerns and notwithstanding the length of time he has spent in custody in Australia, the offence he is charged with is a serious one which renders him liable to a significant custodial sentence in Hungary. It is not unknown for eminent and well respected persons of previous good character to have to answer criminal charges. The medical issues raised by [Timar] could constitute a basis for refusing extradition on the health and humanitarian grounds in the Treaty. It is acknowledged that [Timar] suffers from high blood pressure and impaired glucose tolerance and that he has recently had a kidney removed which was afflicted by a tumour. These medical issues can be expected to be exacerbated were he to be extradited to Hungary. However, it is arguable whether these medical issues actually justify refusal of extradition on the health and humanitarian grounds in the treaty in view of the independent cardiologists' opinion that [Timar's] high blood pressure can be controlled, the Hungarian authorities' advice that medical treatment and medication is available in Hungary to address these problems, and medical advice from Peregrin's lawyers suggesting that the tumour was not cancerous and the operation unremarkable. In view of the foregoing, we advise that the medical issues are not so exceptional as to justify refusal of extradition on the health and humanitarian grounds in the Treaty." 18 It was submitted by counsel for Professor Timar that Art 3.2(f) does not require unusual or special circumstances which would constitute exceptional circumstances but falls to be considered on its own plain language. It was contended that a requirement for such circumstances may have been expressed in the article if such were the case. 19 It was submitted that what was required was a consideration of all the circumstances of the case - which included, but were not limited to, Professor Timar's age, health and/or other personal circumstances - in the context of whether his extradition would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment. 20 It was further submitted that the above mentioned concepts must be considered according to "Australian standards" and by reference not only to Professor Timar but also to his family. 21 Counsel for the Minister submitted to the effect that the Minister was entitled to form the view that unusual, special or exceptional circumstances must exist before the Minister would be satisfied that the circumstances in Art 3.2(f) existed. 22 The reason for this, it was submitted, is because compelling reasons must be shown for the Minister to refuse to comply with the general or usual position where an extradition request will be complied with. Reference in this context was made to Art 1 of the Treaty which is headed - "OBLIGATION TO EXTRADITE" and provides that: "The Contracting States undertake to extradite to each other, subject to the provisions of this Treaty, any person found in the territory of one of the Contracting States who is wanted for prosecution by a competent authority for, or has been convicted of, an extraditable offence against the law of the other Contracting State."

(ii) Consideration 23 On a proper construction of the Treaty - when the Treaty is read as a whole and in the context of the Act - I consider that the Minister in coming to her relevant "state of satisfaction" was entitled to consider whether the circumstances were such that the otherwise usual course of extradition should not occur. Article 3 itself is titled, "EXCEPTIONS TO EXTRADITION". The circumstances referred to in Art 3.2(f) are by their very terms exceptional. What the Minister is required to consider in determining whether to refuse extradition by reference to Art 3.2(f) is whether these exceptional circumstances apply to the "eligible person", in this case Professor Timar. 24 Reference to exceptional circumstances in the material that advised the Minister and upon which she ultimately acted, in its proper context, is not surprising. The submissions on this issue by counsel for Professor Timar essentially amount to an invitation to the Court to do exactly what the High Court said it should not do in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In Wu at 272 the following was said: "…the reasons of an administrative decision- maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." 25 I reject the submission made on behalf of Professor Timar that the Minister erred by imposing a requirement that Professor Timar show exceptional circumstances so that his extradition may be refused.

(i) Competing contentions 26 It was submitted on Professor Timor's behalf that the Minister failed to take into account several matters that she was required to under Art 3.2(f) in coming to her relevant "state of satisfaction". These matters were alleged to be the following: · the age of Professor Timar and the difficulty he would have in attempting to re-establish himself within the community · the position of his family who permanently reside in Australia · several matters relating to Professor Timar's health; such as Ø high blood pressure problems Ø the effect upon his health caused by continued incarceration 27 It was contended that by failing to take the above matters into account, the Minister failed to comply with Art 3.2(f) of the Treaty, and failed to properly exercise her powers under s22 of the Act. Consequently, so the argument ran, she had no authority to sign the warrant for surrender under s23 of the Act. 28 In response, counsel for the Minister submitted that the Minister did take these matters into account. (ii) Consideration 29 I accept the submission of counsel for the Minister. The age of Professor Timar was the subject of submissions to the Minister and was referred to in the advice upon which she acted. For example par 2 of the advice dated 5 January 2001 states "[Timar] is a 58 year old dual Hungarian/Australian citizen…" 30 The difficulty which Professor Timar would have in re-establishing himself in Australia post his exposure to legal proceedings in Hungary is not a matter specifically addressed by Art 3(2)(f) but may be considered as part of "other personal circumstances", which the Minister may take into account. There is no reason to believe that the Minister did not consider the obvious fact that Professor Timar may have difficulties re-establishing himself post-extradition. 31 Similar considerations arose with respect to the issue of "the position of his family who permanently reside in Australia". The Minister cannot be taken to be oblivious to the obvious fact that families of all who are extradited are likely to be subject to substantial disruption. 32 The advice received by the Minister dealt at great length with Professor Timar's health problems including his high blood pressure and the effect on his health caused by his continued incarceration. It was acknowledged that Professor Timar suffers from high blood pressure and that his "medical issues can be expected to be exacerbated were he to be extradited to Hungary".

The unreasonableness issue 33 Counsel for Professor Timar submitted, in the alternative, that the Minister's decision was manifestly unreasonable. It was contended that she was wrong in taking into account that Professor Timar's innocence or good character were matters for the Hungarian Courts. It was also contended that the Minister was wrong in the way she dealt with the medical evidence. I did not call upon counsel for the Minister to respond to this submission. When advancing his submission on this issue, counsel for Professor Timar made reference to the notion that inappropriate weight was given to certain matters by the Minister. 34 It must be borne in mind that the Court has a "limited role" in "reviewing the exercise of an administrative descretion"; see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J. 35 In this matter, I consider that counsel for Professor Timar has demonstrated why it may be forcefully contended that the Minister came to a conclusion with which other "reasonable minds might differ"; see Foster per Gaudron and Hayne JJ at [38]. However, this does not render a decision unreasonable. Gleeson CJ and McHugh J discussed the concept of unreasonableness in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626-627 ("Eshetu"): "Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as 'illogical' or 'unreasonable', or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence. In Puhlhofer v Hillingdon London Borough Council [ [1986] AC at 518] Lord Brightman said: 'Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.' In Chan v Minister for Immigration and Ethnic Affairs [(1989) 169 CLR 379] a delegate's decision that an applicant for refugee status had a fear of persecution which was not well-founded was held to fall within the provisions of the legislation then applicable which corresponded to the concept of Wednesbury unreasonableness. The conclusion is conveniently summarised in the judgment of Toohey J as follows (33): 'In essence the delegate concluded that while the appellant had a fear of persecution, that fear was not well-founded. However, the delegate had accepted that there may have been 'discrimination' against the appellant. Given the circumstances of that discrimination, no reasonable delegate could have concluded that it did not amount to persecution. Nor could a reasonable delegate have concluded other than that there was a real chance of imprisonment or exile if the appellant returned to China.' In the same case Mason CJ (34) criticised the Full Court of the Federal Court for having 'trespassed into the forbidden field of review on the merits'. In Wednesbury [ [1948] 1KB223] itself, which was concerned with an issue as to whether the imposition of a condition imposed by a licensing authority was so unreasonable as to be beyond the proper exercise of the authority's powers, Lord Greene MR said that what a court may consider unreasonable is a very different thing from "something overwhelming" such that it means that a decision was one that no reasonable body could have come to. As Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 42] , when the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another 'a court should proceed with caution … lest it exceed its supervisory role by reviewing the decision on its merits.'"

36 In my view, the decision of the Minister, whilst open to question on the merits as being less compassionate than a decision to the contrary, is not a decision which is so overwhelmingly unreasonable as to be beyond the proper exercise of her discretion. Once a party quibbles with the weight given to particular issues in a Minister's decision it is a sure sign that that party is seeking a review on the merits, rather than seeking to draw the attention of a Court to legal errors. See also Eshetu per Gleeson CJ and McHugh J at [45] concerning questions of weight given to certain considerations. 37 I reject the "unreasonableness" ground relied upon by Professor Timar.

The order of the Court is as follows:

1. The application be dismissed.
2. The applicant pay the respondent's costs of the application, including any reserved costs, to be taxed in default of agreement.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Dated: 5 June 2001 Counsel for the Applicant: Mr J Kaufman QC with Mr G Thomas

Solicitor for the Applicant: Trumble Szanto Lawyers

Solicitor for the Respondent: Australian Government Solicitor