Yacoub 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 The applicant, Mr Simon Yacoub, also known as Firas El Kotob, is the subject of extradition proceedings in the Local Court of New South Wales. The respondent, the United States of America, seeks Mr Yacoub's extradition under the Extradition Act 1988 (Cth) to face prosecution in that country on money laundering and conspiracy to commit money laundering offences. It should be noted at the outset that the procedure and relevant considerations for the grant of bail to a person who is the subject of extradition proceedings differs significantly from those that apply to a person charged with a criminal offence under State, Territory or Federal law. 2 The general scheme of the Extradition Act when extradition is opposed was restated by the Full Court in Liem v Republic of Indonesia [2018] FCAFC 135 at [21]: There are, as the Court in Harris v Attorney-General (Commonwealth) [1994] FCA 621; 52 FCR 386 at 389 described, four stages under the Extradition Act, all of which must be successful, before a person will be forcibly extradited. There are also, at each of these stages, provisions providing for a person to consent to her or his extradition but those provisions are not material to the appeal and need not be considered further. The four stages are: (a) the commencement of the extradition process (see s 12 and s 16); (b) the arrest and remand or bail of a person (see s 15); (c) the determination of whether a person is eligible for surrender (s 19 and s 21); (d) the discretionary decision of the Attorney-General of whether a person, if eligible, should be surrendered (s 22). 3 Mr Yacoub unsuccessfully applied to a Local Court magistrate for bail under s 15(2) of the Extradition Act, being at stage two listed in Liem above. His hearing for the first part of stage three, being a determination by a magistrate under s 19 of the Extradition Act as to whether he is eligible for surrender was listed for hearing in the Local Court on 19 November 2019. However, in his submissions in support of this application, he indicates that he withdraws his objection to an extradition order being made. That was confirmed by his solicitor at the hearing of this application. Necessarily, the second part of stage three, being a s 21 review by this Court of the magistrate's s 19 decision (not yet made), has not been reached. 4 The magistrate's decision refusing bail was made on 22 August 2019. That decision is administrative, not judicial: Tsvetnenko v United States of America [2019] FCAFC 74; 367 ALR 465 at [25]. As such, that decision is amenable to judicial review in this Court under s 39B of the Judiciary Act 1903 (Cth), noting that judicial review of the magistrate's bail decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is excluded by s 3 of that Act when read with item (r) in Schedule 1 to that Act. 5 As to the key and relevant parts of s 15 of the Extradition Act in force at the time of the magistrate's decision (and still in force): (1) s 15(2) provides: The person shall be remanded by a magistrate or eligible Federal Circuit Court Judge in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under one or more of sections 15A, 18 and 19 to be conducted. (2) s 15(3) provides: If a person is remanded in custody after making an application for bail, the person cannot make another application for bail during that remand unless there is evidence of a change of circumstances that might justify bail being granted. (3) s 15(6) provides: A magistrate or eligible Federal Circuit Court Judge shall not remand a person on bail under this section unless there are special circumstances justifying such remand. 6 The High Court provided a comprehensive statement of principle on the topic of the grant of bail under the Extradition Act in United Mexican States v Cabal [2001] HCA 60; 209 CLR 165 at [52] and [61] (footnotes omitted): The United States cases give valuable guidance as to what constitutes special circumstances. At an early stage, the view was taken that "admission to bail and extradition should be in practice an unusual and extraordinary thing, for the whole proceeding is opposed to our historical ideas about bail". It is therefore accepted that special circumstances "need to be extraordinary and not factors applicable to all defendants facing extradition". It is not necessary that any particular circumstance should be regarded as special. Several factors in combination can constitute special circumstances justifying bail. … Given this background and the rationale for the "special circumstances" condition, bail in extradition cases should be granted only when two conditions are fulfilled. First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute "special circumstances", the matters relied on "need to be extraordinary and not factors applicable to all defendants facing extradition". Secondly, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. When there is a real risk of flight, ordinarily bail should be refused. Further, the risk of flight should be considered independently of the effect of the proposed bail conditions. In this area of law, the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions - even rigorous conditions. A person, fearing punishment and inclined to flee, is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions. Even if the defendant has to report twice daily to the police, he or she will have a period of twelve to fourteen hours in which to leave Australia. 7 The magistrate heard the bail application on 6 June 2019 and 30 July 2019. Her Honour was also furnished with reasonably detailed written submissions by both Mr Yacoub and the United States. Her Honour reserved her decision until 22 August 2019, at which time she delivered relatively detailed and comprehensive reasons. Her Honour outlined the main grounds that Mr Yacoub relied upon and considered the question of special circumstances, quoting key portions of [52] and [61] of Cabal reproduced above. Her Honour detailed Mr Yacoub's arguments as to why he had established special circumstances, concluding that he had failed to demonstrate or establish that this was made out. Although strictly not necessary to do so, for completeness, the magistrate also considered the issue and arguments as to whether there was a "real risk of flight" and concluded that there was. No error in her Honour's reasoning or conclusions has been asserted by Mr Yacoub. 8 Mr Yacoub brings a proceeding in this Court by way of an originating application for relief under s 39B of the Judiciary Act. However, the relief sought within that originating application is not judicial review of the magistrate's decision, but rather the grant of bail under s 15 of the Extradition Act. Importantly, Mr Yacoub's written submissions make it clear that he makes no attack on the magistrate's bail decision, but rather, in keeping with his originating application, seeks the grant of conditional bail by this Court to facilitate his defence in a trial in the District Court of New South Wales commencing on 28 October 2019 and his voluntary travel to New York to defend the criminal charges against him in the New York District Court. As noted above, he states in his submissions in this Court that he withdraws his objection to extradition, a matter that was otherwise going to be heard by the Local Court on 19 November 2019. 9 It is apparent from the terms of s 15(2) of the Extradition Act, reproduced above, that the jurisdiction to grant bail is confined to magistrates or eligible Federal Circuit Court judges. An application for judicial review under s 39B of the Judiciary Act does not, and cannot, bestow any jurisdiction upon this Court to grant bail under s 15 of the Extradition Act. This Court only has jurisdiction to grant or refuse bail under the Extradition Act as relevant to Mr Yacoub (relevantly excluding bail provisions in relation to extradition to New Zealand): (1) under s 21(2A)(b), as an incident of the quashing of a s 19(10) order by which it has been determined by a magistrate or eligible Federal Circuit Court judge that a person was not eligible for surrender, following a review by hearing de novo provided for by s 21 resulting in a contrary finding that the person was eligible for surrender; or (2) under s 21(6)(e) or (f), as an incident of an application for review by this Court under s 21(1), or as an incident of an appeal to the Full Court from such a review. 10 As there has not yet been any s 19 decision, there cannot yet be any s 21 review or appeal proceeding in this Court, and this Court therefore does not have jurisdiction to grant or refuse bail. It is therefore not necessary to go further and consider the s 49C bail provisions that apply pending judicial review proceedings following a s 22(2) or s 15B(2) determination by the Attorney-General that a person is to be surrendered. 11 Even taking the most beneficial view possible of Mr Yacoub's originating application and treating it as what it is meant to be, namely an application for judicial review of the magistrate's bail decision, avails him no more. As the United States correctly points out, in order to obtain relief under s 39B there must be identified either jurisdictional error or non-jurisdictional error on the face of the record, citing Craig v State of South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82]. 12 As the High Court has pointed out in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [24] (footnotes omitted): Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a "nullity", in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all". To that extent, in traditional parlance, the decision is "invalid" or "void". 13 The statutory authority reposed in the magistrate under s 15(2) of the Extradition Act was described and commented upon by the Full Court in Tsvetnenko at follows (at [24] and [30]): The statutory authority that is relevant in the present case is contained in s 15(2) of the Extradition Act. It confers a discretionary power upon a magistrate or eligible Federal Circuit Court judge to remand on bail a person arrested under an extradition arrest warrant. … Importantly, the discretionary power conferred by s 15(2) is not expressly conditioned upon the magistrate or eligible judge being satisfied as to any particular matter. In particular, it is not expressly conditioned upon the magistrate being satisfied that there are special circumstances. The discretion to be exercised by the magistrate or eligible judge arises upon arrest of a person under an extradition warrant. When arrested the person must be brought before a magistrate or eligible judge: s 15(1). The person must then be remanded. It falls to the magistrate or eligible judge to exercise a discretion whether to remand in custody or on bail. The requirement that there be special circumstances is separately stated as a matter that must exist before there is any discretion to release on bail. 14 Thus, in order for Mr Yacoub to obtain any relief in this Court, which cannot include the grant of bail by this Court in the present circumstances, he had to identify and establish an error on the part of the magistrate by way of her Honour misdirecting herself "in a manner and to an extent that there was a failure to undertake the statutory task or the task was discharged in a manner that meant it was outside the authority conferred": Tsvetnenko at [43]. On any view, that was going to be a very difficult task for Mr Yacoub given the statement of principle on the topic of the grant of bail under the Extradition Act in Cabal at [61], reproduced above. 15 There has been no attempt by Mr Yacoub to identify or establish any failure on the part of the magistrate to comply with the legal obligations imposed upon her Honour by the terms of s 15(2) of the Extradition Act, let alone to do so to the high threshold of establishing jurisdictional error. Far from the magistrate failing to approach the grant or refusal of bail in a manner contrary to that outlined above by the High Court in Cabal, her Honour faithfully applied that approach, expressly referring to that decision, and to other authority, in doing so. I can see no error, let alone jurisdictional error, in her Honour's reasons. 16 It follows that Mr Yacoub's application must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.