GROUNDS OF REVIEW AS AMENDED
101 The grounds for review were:
1. The Second Respondent, acting through his delegate, the Minister for Justice and Customs of the Commonwealth, erred in law and fact and misdirected himself on a fundamental matter regarding whether the Applicant was an "extraditable person", and made a jurisdictional error, in deciding to issue, and issuing, pursuant to s.16 of the Act, a Notice of Receipt of Extradition Request (the s.16 Notice) on 8 July 2005.
Particulars
(a) According to information provided on 17 March 2009 by the leader of the Military Panel of the Budapest Municipal Court ("Military Panel") and accepted as correct by the Hungarian Government, the extradition of the Applicant is only sought for the purposes of preliminary investigation about his involvement in the alleged war crime, and there is no indictment currently before the Panel charging him with the alleged offence.
(b) As the proceedings instituted in the Military Panel are essentially investigative and preliminary and not at a more advanced state involving the laying of any charge, the Applicant is not a person who is "accused" (within the meaning of s.6(a) of the Act) of having committed the alleged offence of war crime in relation to which the Republic of Hungary's request for extradition was made.
(c) The statutory requirement that an "extraditable person" be "accused" of a relevant extradition offence is not met by equating it with expressions such as "wanted for prosecution", or being "suspected of committing" the relevant offence.
(d) The Applicant therefore is not and never was an "extraditable person" within the meaning of, and for the purposes of, the Act.
(e) As the Applicant was not an "extraditable person" when the Extradition Request was made by the Republic of Hungary to the Australian Government, the Second Respondent should not have acted upon the Extradition Request by issuing the s.16 Notice. To do so was beyond his statutory power.
(f) The s.16 Notice was therefore unlawful and void.
2. The order made on 20 August 2008 by the Third Respondent, after conducting eligibility proceedings under s.19 of the Act, pursuant to s.19(9) of the Act, committing the Applicant to imprisonment in Western Australia, was beyond jurisdiction, unlawful and void.
Particulars
(a) Eligibility proceedings under s.19 of the Act cannot be conducted unless, as required by s.19(1)(b) of the Act, the Attorney-General has directed "a notice under s.16(1)" to a magistrate.
(b) By reason of the matters particularised in the preceding Ground, the s.16 Notice directed to the Third Respondent on 8 July 2005 by the Second Respondent, purportedly pursuant to s.16(1) of the Act, was unlawful and of no legal effect.
(c) Therefore the Applicant should not have been found to be an "eligible person", and the Third Respondent had no power or jurisdiction to conduct proceedings under s.19 of the Act, or to make the order, on 20 August 2008, pursuant to s.19(9) of the Act, committing the Applicant to prison.
3. The Minister (First Respondent) made an error of law and fact and misdirected himself on a fundamental matter regarding whether the Applicant was capable of being surrendered under the Act, and made a jurisdictional error, in finding that the Applicant was an "eligible person" within the meaning of s 19(2) of the Act, and for the purposes of s 22 of the Act in relation to an extradition offence of war crime established by s 165 of the Hungarian Criminal Code Act IV of 1978 in conjunction with s 11 para 5 of Prime Minister's-Decree No 81/1945 (II.5) ME on the Peoples Jurisdiction enacted by Act VII of 1945 amended and complemented by Decree No 1440/1945 (V.1.) ME ("war crime").
Particulars
(a) The Applicant repeats Particular 1(a).
(b) The Applicant repeats Particular 1(b).
(c) The Applicant repeats Particular 1(c).
(d) The Applicant repeats Particular 1(d).
(e) In apparently concluding that the Applicant satisfies the definition of an "extraditable person", and hence "eligible person", the Minister failed to have proper regard to the legal distinction between preliminary investigative process and the more advanced state of affairs where charges are laid or are imminent, and was inferentially misled to an incorrect understanding of the relevant legal concept of "accused" by the reference in Departmental Attachment C (para 262; also para 190) to the Australian High Court authority of Director of Public Prosecutions (Cth) & the Republic of Austria v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 which is cited for the proposition that extradition legislation must be construed so as to recognize differences between the common law and continental systems of criminal law, but omitting reference to the passage from Gummow J in Kainhofer (at [88]), cited in the Applicant's Supplementary Submission dated 26 October 2009, in which his Honour made the above relevant distinction is made. (sic)
(f) As the Applicant was not an "extraditable person" when the request for his extradition was made to the Australian Government, proceedings against him under the Act were and are contrary to the requirements of the Act and should not have been commenced, and he should not have been found to be an "eligible person" by the Magistrate for the purposes of sub-ss 19(2) and (9) of the Act.
(g) As the Applicant was incapable of being found to be an "eligible person" under sub-s 19(2) of the Act the Minister had no power to make a determination for his extradition under s 22 of the Act.
(h) In consequence, the Minister's determination that the Applicant should be surrendered for extradition is not authorised by law and is a nullity.
4. The Minister further erred in law and made a jurisdictional error, in determining that the Applicant was eligible to be surrendered under s 22 of the Act, in relation to a "qualifying extradition offence" of war crime, and that determination was not authorised by the Act and was a nullity.
Particulars
(a) By virtue of Article 2 paragraph 5(a) of the Extradition Treaty between Australia and the Republic of Hungary 1995 ("Extradition Treaty"), as incorporated into the Act under of s 11 of the Act and the Extradition (Republic of Hungary) Regulations 1997, the alleged war crime was not an offence under Hungarian municipal law at the time (8 November 1944) when the conduct constituting the offence is alleged to have occurred.
(b) "War crime" was not made an offence under the Hungarian Criminal Code until legislation of Hungary enacted by Decree No 81/1945 (1945 Decree) which was purportedly given retrospective effect in Hungary by s 1 of the 1945 Decree.
(c) Relative to extradition requests by the Republic of Hungary, the effect of Article 2 paragraph 5(a) of the Extradition Treaty is that conduct which was not a criminal offence under Hungarian law at the time the conduct occurred is not an "extradition offence", as defined by s 4 of the Act.
(d) Unlike other international instruments such as the European Convention on Human Rights 1950 (ECHR), the International Covenant on Civil and Political Rights 1966 (ICCPR) and the Rome Statute establishing the International Criminal Court (where non-retrospectivity clauses are qualified by an exception in the case of war crimes) the Extradition Treaty contains no such exception.
(e) The alleged offence is therefore not an "extradition offence", and is therefore not an offence in relation to which the Minister may, under s 22 of the Act, order that the Applicant be surrendered to Hungary.
5. The Minister erred in law, in failing to give proper, realistic and genuine consideration to whether, in the exercise of the discretion conferred by Article 3 paragraph 2(a) of the Extradition Treaty, he should refuse extradition, having regard to the fact that the Applicant is a national of Australia, and all other relevant factors. Alternatively, his decision not to refuse extradition was one which no Minister, acting reasonably and giving consideration to those facts could, in the proper exercise of his discretion, make.
Particulars
(a) The Minister had a duty, imposed by Paragraph 2(a) of Article 3, to give primary consideration to the fact that the Applicant is an Australian citizen and national, given that Hungary may request Australia to submit the case to competent authorities in Australia, to consider whether to prosecute the Applicant in Australia.
(b) The Minister fettered the exercise of his discretion and disabled himself from properly and genuinely considering its exercise and the factors relevant to it, purportedly on the ground of a long-standing "policy" that Australia will not refuse extradition on the basis of Australian citizenship alone.
(c) The Minister further fettered the exercise of his discretion by giving undue precedence to Australia's obligation, under the Extradition Treaty, to respond to the Republic of Hungary's extradition request, without having a balanced or any regard to Australia's other obligations and responsibilities under that Treaty to the Applicant, as an Australian citizen.
(d) In so doing, the Minister failed to take into account the fact that Australia has a primary obligation to afford diplomatic protection to the Applicant, as an Australian national, and to save him from undergoing foreign criminal procedures unnecessarily, if either a Hungarian request is made under Article 3 paragraph 2(a), or Australia of its own motion considers whether, as an Australian national resident in Australia, the Applicant can and should be prosecuted under Australian law for the alleged war crime.
(e) The Minister further failed to satisfy himself as to whether Australia or Hungary had primary responsibility for prosecuting the Applicant, given that the Applicant had ceased to be, by force of Hungarian law applicable in 1944-1945, an Hungarian national, having failed to return to Hungary in response to an official summons to do so.
(f) The Minister should have had regard and failed to have regard to the fact that Australia has a primary obligation to afford the Applicant diplomatic protection, to prevent any unnecessary or disproportionate distress and disruption that his extradition would occasion if removed from Australia; or to the question of whether, as an alternative to Hungarian proceedings, the Applicant might be investigated and (if thought appropriate) prosecuted for the alleged war crime under Australian war-crimes legislation.
5A. The First Respondent erred in law and fact and made a jurisdictional error in deciding that there was no basis for finding that the competent Australian prosecuting authorities, the Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions (CDPP), had not, within the meaning of, and for the purposes of Article 3(2)(b) of the Extradition Treaty, decided to refrain from prosecuting the Applicant for the alleged offence in respect of which extradition is sought, thereby failing to give relevant and proper consideration under section 22 of the Act to whether Australia as the Requested State should refuse to surrender the Applicant for extradition.
Particulars
(a) According to paragraphs 112, 116 and 117 of Departmental Attachment C the AFP, having accepted a referral concerning an allegation of a war crime, considered the possibility of prosecuting the Applicant for an offence under the War Crimes Act 1945 (Cth) and sought advice from the CDPP regarding whether such a prosecution could be initiated in Australia. Upon receiving advice from the CDPP that in the absence of any testimony from living witnesses to support the documentary evidence the CDPP was unable to conclude that there was a prima facie case to support a prosecution under the War Crimes Act, the AFP determined not to proceed further.
(b) Having regard to the exchange of information between the AFP and the CDPP and its outcome, there was in the circumstances an actual or constructive refraining by Australia's competent authorities from prosecuting the Applicant and. Article 3(2)(b) of the Treaty was therefore engaged.
(c) The First Respondent wrongly took into account the view of the Department (paragraph 118 of Departmental Attachment C) that the decision of the AFP to take no further action did not constitute a 'refraining' since it did not entail a positive decision not to prosecute the Applicant, thereby misdirecting himself on the legal meaning of "refrain" in Article 3(2)(b).
(d) By concluding that there had not been a relevant refraining, he failed to consider, as required by Article 3(2)(b), whether he should exercise his discretion, acting on behalf of Australia, to refuse the Hungarian Request and thereby committed a jurisdictional error.
6. The Minister further erred in law, misdirected himself on a fundamental matter regarding whether in the terms of Article 3 paragraph (2)(f) of the Extradition Treaty the Applicant's extradition would be unjust, oppressive, and incompatible with humanitarian considerations, failed to take into account relevant considerations which he was bound to consider, and failed to properly exercise his jurisdiction under s 22 of the Act.
Particulars
(a) The Minister failed to satisfy himself of the capacity of the Military Division to provide procedures consistent with Australia's and Hungary's international obligations under Article 14 of the ICCPR with its two protocols and other relevant instruments, to ensure a fair trial if the Military Division were to charge and prosecute the Applicant for the offence of war crime.
(b) By virtue of s 11 and sub-paragraphs 22(3)(e)(i), (ii), (iii) and (iv), and 22(3)(f) of the Act, the Minister is required to have regard to the considerations specified in Article 3 paragraph 2(f) of the Extradition Treaty, namely, whether in the relevant circumstances it would be unjust, oppressive, and incompatible with humanitarian considerations to extradite the Applicant.
(c) In issuing the international arrest warrant for the Applicant's extradition to Hungary, the Republic of Hungary relied on the minutes and records of statements made in criminal proceedings before the Hungarian People's Court in 1946-1947 by the defendants and various witnesses in the trials of a Captain Mader and Lieutenant Nagy, which apparently will be the foundation on which any prosecution of the Applicant will be based. (Departmental Attachment C, para 33).
(d) So far as is known (and it is not contradicted by the Republic of Hungary) the relevant prosecution witnesses, on whose statements the Hungarian military prosecution authorities will apparently rely, are either no longer alive or are not available for examination.
(e) The Applicant has made submissions to the Minister that, if the Hungarian military prosecution authorities intend to rely on documentary evidence of Captain Mader, Lieutenant Nagy, and other witnesses including Jozsef Monori, Pal Marko, Zoltan Imre, and Janos Mahr, the Minister must be satisfied that the Applicant will have an opportunity to confront and question the witnesses, as required by Article 6 of the ECHR and Article 14 of the ICCPR, failing which to extradite the Applicant to Hungary would be unjust and oppressive within the meaning of Article 3 paragraph 2(f) of the Extradition Treaty.
(f) The Minister has also failed to discharge his responsibility of requiring the Hungarian Government to satisfy him that the Applicant will not be subjected to an unfair and unjust trial.
(g) The Hungarian authorities have failed to give an assurance that statements recorded by the People's Court in 1946-1947, coerced by torture, including any by Lieutenant Nagy, would not be produced as evidence in proceedings before the Military Panel, contrary to Article 15 of the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 1984 (CAT)
(h) It is a fundamental requirement of a fair trial in accordance with the above international instruments that the Applicant should have the opportunity and ability to question the above-named witnesses as to whether their statements were voluntary or coerced by threats of torture, induced by promises of leniency, are consistent with other statements by relevant witnesses, or reliable and credible, particularly given that to a large extent the statements are those of alleged accomplices or based on hearsay.
(i) The Republic of Hungary has declined to provide any specific details about whether the named witnesses are alive and available to be called in any proceedings against the Applicant, failed to inform the Applicant or the Australian Government of any alternative procedures for the testing of the voluntariness, reliability, credibility and veracity of the statements of those witnesses, and has given the Minister no assurance as to how, the Military Panel would be able to provide fair procedures and a fair trial if it were to prosecute the Applicant.
(j) The Republic of Hungary has, further, refused and failed to inform the Applicant or the Minister how the Applicant would be able to have a fair trial in accordance with international standards, when he will be unable to access relevant official documentary evidence (destroyed in the time elapsed since 1944) about the movement of his unit of the Royal Hungarian Army that would enable him to establish that he was not in Budapest at the time of the commission of the alleged offence in Budapest.
(k) The Minister, in the absence of such information and assurances and without making any further enquiry, has made his determination that the Applicant should be surrendered for extradition, apparently because the Military Panel is bound by the provisions of the ECHR and ICCPR and that it is therefore not for the Australian Government to enquire into or make judgments about whether the Military Panel and its procedures will, in fact, be able to comply with the international standards for a fair trial (Departmental Attachment C paras 103, 219).
(l) In that regard, the Minister has been misled by the selective reference in the Departmental Attachment C (para 33, dot point 7 and para 190) to the decision of this Honourable Court in Mokbel v Attorney-General for the Commonwealth (2007) 162 FCA (sic-FCR) 278 at [58]-[59], said to be authority that in accordance with the principle of comity a degree of respect is to be accorded by a requested country to the laws and institutions of another country, but omitting reference to Snedden v Republic of Croatia [2009] FCA 30 (a decision of the Full Federal Court to which the Applicant referred in his Supplementary Submissions to the Minister dated 26 October 2009) in which the contrary proposition was stated, namely that Australian court may, in an appropriate case, determine that a country requesting the extradition of an Australian citizen cannot provide a fair and unbiased trial in the event of extradition, and if so, that extradition must be refused.
(m) The Minister, in accepting that "comity" prevents him from considering whether, having regard to the particular evidentiary problems presented by the non-availability of key witnesses, the procedures of the Military Tribunal are actually capable of affording the Applicant a just and fair trial in accordance with relevant international standards has fettered his discretion and abdicated his responsibility to address that question.
(n) The Minister has in that regard asked himself the wrong question: the issue is not whether the Military Division is capable of providing a fair trial because it is bound by the ECHR and ICCPR; it is whether the Hungarian authorities can provide assurances to the Australian Government as to how they can, in fact, afford a fair trial to the Applicant in accordance with the ECHR and ICCPR in all the circumstances.
(o) The Minister has further erred in law and taken into account an irrelevant consideration, namely, that if the Hungarian authorities and the Military Panel fail to comply with the relevant international standards, the Applicant could appeal pursuant to procedures open, under Hungarian law, with the ultimate prospect of appealing to the European Court of Human Rights, and has concluded that he therefore has no responsibility to satisfy himself, before making a decision to extradite, that the Applicant will be able to be afforded a fair trial, complying with the relevant international standards.
Particulars
(oa) Further, the statement in Departmental Attachment C, paragraph 202, that advice received from the Attorney-General's Department's Office of International Law (OIL) (which is summarised in unredacted form in paragraphs 204 and 205 of that Attachment) suggests that there is "no information that establishes that the Military Panel would not be capable of providing a fair trial", and in paragraph 204 that: "We are not aware of any information to suggest that Hungry does not propose or is unlikely to provide Zentai with a fair trial", is inconsistent with the highly qualified advice given by the OIL that for a trial to be fair the Military Panel could only have regard to documentary evidence that was unsupported by viva voce evidence so long as the documentary material was not the sole or decisive evidence.
(ob) The First Respondent has therefore acted on a legally incorrect view of the apparently unsupported documentary evidence on which the Republic of Hungary proposes to rely (if a trial were to be instituted), and consequently, in the special circumstances of this case, erred in failing to take into account the fact that Hungary has not been able to produce any relevant live witnesses whose testimony would allow testing of the 1940's documentary records, given that the records cannot, in accordance with international standards of fairness, constitute the sole or decisive evidence for the prosecution.
(p) Contrary to the statement in the Departmental Attachment C, para 210, (that there is no evidence to suggest that Hungary will not afford the Applicant the protections and rights contained in its procedures and practices) there is evidence that the Military Panel, when issuing the international arrest warrant relating to the Applicant in 2005, failed to consider whether the statements and records of the People's Court were capable of being used in any criminal proceedings consistently with the Republic of Hungary's obligations under the ECHR and ICCPR, or whether a prosecution could comply with the requirement of a fair trial according to the standards of the ECHR and ICCPR. The Minister has, in the result, failed to take into account a relevant consideration, namely, that the Military Panel has already failed to comply with the relevant international standards.
(q) The Minister, in relying on Departmental Attachment C, has apparently also been induced to misconceive the nature of the Applicant's submissions regarding the need to confront prosecution witnesses, given that there is objective evidence that the Hungarian prosecution authorities may be incapable of producing critical prosecution witnesses, whose evidence is proposed to be relied on.
(r) The Minister has also failed to have regard to a relevant factor, namely Australia's own international legal obligations under the ICCPR, irrespective of any other obligations of non-refoulement, not to surrender the Applicant, an Australian national, for extradition where there is objective evidence that he may not be afforded a fair trial, and a real risk that there will be a violation of Australia's international undertakings because of its failure to comply with Article 14 of the ICCPR.
7. In dealing with the Applicant's extradition objection pursuant to s 7(c) of the Act, that he may be prejudiced at his trial by reason of his nationality or political opinions, the Minister failed to give a fair, properly reasoned and informed consideration to the Applicant's claim that the issuance by the People's Court in 1948 of a warrant for his arrest was wholly or in part due to the fact that the People's Court and the Hungarian communist authorities then in power were biased against officers of the Royal Hungarian Army fleeing Russian occupation, so that there is a real risk that the Applicant was sought because of his national and political associations, and that the proceedings of the People's Court against Captain Mader and Lieutenant Nagy, to the extent that they implicated the Applicant, were influenced and tainted by that consideration.
Particulars
(a) Para 26 & 35 of Departmental Attachment C; states that there is no information in the Department's possession that the Applicant's prosecution will be influenced by his nationality or political opinion, notwithstanding that the Applicant made a submission relating to the continuing effect of any original prejudice affecting the decisions in 1947-1948 of the People's Court's.
(b) Departmental Attachment C, at para 37, denies that any taint arising from tainted political bias in the minutes and records of the proceedings of the People's Court and the warrant for the Applicant's arrest issued in 1948 is capable of having a continuing operative effect in any contemporary proceedings of the Military Panel.
8. The Minister made an error of law and a jurisdictional error in failing to give proper or any consideration to whether the Military Panel is a court or tribunal that is only occasionally, or under exceptional circumstances, authorised to try persons accused of the offence for which extradition is sought, or to whether to refuse extradition for that reason, as required by Article 3 paragraph (1)(f) of the Extradition Treaty.
Particulars
(a) The Minister failed to address and consider whether, with regard to the jurisdiction of the Military Panel to try offences of the nature of the war crime, the Military Panel is only occasionally authorised to conduct such proceedings, in the legal sense of only being required to exercise its jurisdiction in exceptional circumstances, not commonly encountered within the normal criminal jurisdiction of a court or tribunal.
(b) The Republic of Hungary has failed to provide to the Minister information regarding the statistical frequency with which the Military Panel has conducted proceedings with respect to war crimes, so the Minister is unable to make relevant findings concerning this objection.
(c) Further, given the unusual circumstance that the war crime in question is alleged to have occurred 65 years ago, the Republic of Hungary has failed to provide any assurance to the Minister that in the absence of any witnesses able to give oral testimony confirming statements made for the purposes of the proceedings of the People's Court in 1946-1947, the Military Panel will not adopt exceptional procedures, not complying with relevant international law standards, and not ordinarily used in normal judicial proceedings.
(d) In the absence of such information, the Minister was unable to decide whether the nature of the Military Panel involves such a departure from traditional judicial proceedings as to be excluded from the operation of the Extradition Treaty.
9. The Minister erred in law, and committed jurisdictional error, by failing to take into account relevant considerations when considering whether, in accordance with Article 3 paragraph 2(f), it would be oppressive and incompatible with humanitarian considerations to surrender the Applicant for extradition, given his advanced age (88) and his ill health.
Particulars
(a) The Minister failed to give real and genuine consideration to whether,
(i) given the Applicant's age and medical condition, and
(ii) given the Hungarian Government's concession that the Applicant is only wanted in the first instance for investigation,
there are relatively more appropriate alternatives (which would give full force and effect to "humanitarian considerations") to surrendering him for extradition to Hungary, such as permitting the Hungarian authorities to conduct their enquiries in Australia, or, if requested by the Hungarian Government, asking the Australian prosecuting authorities to consider whether to charge the Applicant under the Commonwealth Criminal Code.
(b) The Minister further erred in evidently deciding to give greater effect to the fact that any anguish, stress and seriously adverse health impacts upon the Applicant resulting from his extradition, and possible lengthy incarceration in a foreign country, should be "balanced" against the seriousness of the offence and interest of the international community in having a suspected World War II criminal tried before Hungarian courts.
(c) In so doing, the Minister failed to take into account the fact that the Applicant is an Australian national who is entitled to the presumption of innocence, and that the relevant interests of the international community could, proportionately and appropriately, be satisfied by such alternatives.
10. The Minister has also committed a jurisdictional error by taking into account, in his reasoning process, an inaccurate and misleading impression created in Departmental Attachment C, para 214, to the effect that the Minister should have little, if any, regard to the fact that the Applicant would be disadvantaged in his defence, if he were to be charged, by the long passage of time, because the relevant Hungarian authorities were unaware of the Applicant's presence in Australia until brought to their attention in 2004 by the Simon Wiesenthal Centre (whereupon they responded quickly) and further, (impliedly) that this delay was due in part to the fact that the Applicant had changed his name from Steiner to Zentai, thus preventing the Hungarian authorities from seeking his arrest and extradition at an earlier date.
Particulars
(a) The Applicant changed his name from Steiner to Zentai prior to World War II and was officially known by that name by all relevant Hungarian authorities thereafter including, relevantly, in proceedings before the People's Court.
(b) Any delay in pursuing an investigation and prosecution of the Applicant for the alleged war crime cannot be attributed to the Applicant, who lived openly in Western Australia from 1950 under the name of Zentai, by which he had been known when he left Hungary.
(c) His presence in Western Australia was known in the 1980s to the family of Peter Balazs, the victim of the alleged war crime, who claim to have brought it to the attention of a person associated with the Simon Wiesenthal Centre, which was therefore in a position to inform Hungarian or Australian authorities of the Applicant's presence in Australia at that time.
(d) The Minister made a jurisdictional error by only taking into account (Departmental Attachment C paras 273-279) the fact that the Hungarian authorities have acted in good faith since 2004, without having regard to the earlier opportunities that the Hungarian Government could have had if Hungarian authorities or other informants and agencies had acted more diligently in the past, and by failing to take into account, and give proper weight to, the enormous prejudice to the Applicant occasioned by the delay.
(e) The Minister has, also, apparently taken into account, as a reason not to refuse surrender, the wrong and misleading statement of fact (Departmental Attachment C, para 275) that the Applicant "has lived under the false assumption that [he is] no longer wanted for prosecution".
11. For the reasons stated in the above grounds, the Minister's decision was so unreasonable that it went beyond his jurisdiction under s 22 of the Act and is a nullity and of no legal effect,
12. The Minister further erred in law, and failed to comply with a fundamental legal requirement, by refusing to provide to the Applicant a statement of his relevant findings and the reasons for his determination under s 22 of the Act, in consequence of which his determination is a nullity and of no legal effect.
Particulars
(a) Section 22 of the Act requires the Minister, in exercising his statutory discretion and powers, to make various findings and to be satisfied regarding matters specified in that section.
(b) By necessary implication, for the purpose of judicial review of his decision, if requested by the person subject to the order for extradition, the Minister must provide a statement of relevant findings and reasons.
(c) On 17 and 19 November 2009, the Applicant's solicitors requested the Attorney-General's Department to provide a statement of the Minister's reasons for decision. By letter dated 20 November 2009 the Department replied that no such statement would be provided.
(d) The refusal constitutes a failure to comply with the Act, and therefore of itself vitiates the Minister's decision, and is a ground for quashing it.