Alexander v Attorney-General (Cth)

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FEDERAL COURT OF AUSTRALIA

Alexander v Attorney-General (Cth) [2019] FCA 1829

File number: NSD 560 of 2019
Judge: LEE J
Date of judgment: 7 November 2019
Catchwords: EXTRADITION – surrender of “eligible person” – determination by Attorney-General under s 22(2) of the Extradition Act 1988 (Cth) – whether Attorney-General fell into error – application dismissed
ADMINISTRATIVE LAW –  judicial review – no obligation to provide reasons – whether inappropriate weight afforded to applicant’s health – whether decision was legally unreasonable  
Legislation:

Extradition Act 1988 (Cth) ss 12, 15, 16, 19, 22, 23, 24

Federal Court of Australia Act 1976 (Cth) Pt VB

Judiciary Act 1903 (Cth) s 39B

Extradition (Commonwealth Countries) Regulations 2010 (Cth)

Cases cited:

CVO17 v Minister for Immigration and Border Protection [2019] FCA 1612

Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40

Minister for Immigration and Border Protection v Haq [2019] FCAFC 7

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

O’Connor v Zentai  [2011] FCAFC 102; (2011) 195 FCR 515

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56; (2003) 216 CLR 212

Rivera v Minister for Justice and Customs [2007] FCAFC 123; (2007) 160 FCR 115

Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156; (2014) 230 FCR 82

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1

Vasiljkovic v Commonwealth [2006] HCA 40; (2006) 227 CLR 614

Date of hearing: 31 October 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 53
Counsel for the Applicant: Mr G Smith SC
Solicitor for the Applicant: Powerhouse Law
Counsel for the First Respondent: Mr G Kennett SC with Mr T Glover
Solicitor for the First Respondent: Commonwealth Attorney-General’s Department
Solicitor for the Second Respondent: The Second Respondent entered a submitting notice save as to costs

ORDERS

NSD 560 of 2019
BETWEEN:

DENIS CHRISTOPHER ALEXANDER

Applicant
AND:

COMMONWEALTH ATTORNEY-GENERAL

First Respondent

GOVERNOR, LONG BAY CORRECTIONAL COMPLEX

Second Respondent

JUDGE:

LEE J

DATE OF ORDER:

7 NOVEMBER 2019

THE COURT ORDERS THAT:

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.


REASONS FOR JUDGMENT

LEE J:

A        PRELIMINARY OBSERVATION

  1. This proceeding has had a somewhat irregular procedural history. It is worth briefly explaining why it is that a straightforward application for judicial review of a decision to extradite the applicant, Mr Alexander, was heard some six months after the filing of an originating application. The matter first came before me on 17…

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Details
Case
[2019] FCA 1829
Decision Date

CaseChat Overview and Summary

The case of Alexander v Attorney-General (Cth) involved a challenge by Mr Alexander against the Attorney-General’s decision to surrender him to the United Kingdom for extradition, pursuant to the Extradition Act 1988 (Cth). Mr Alexander sought judicial review of the Attorney-General’s decision, arguing it was legally unreasonable. The application was heard by the Federal Court of Australia.

The legal issues before the court centred on whether the Attorney-General had made an error in exercising his discretion to decide Mr Alexander's extradition. The applicant argued that the Attorney-General had failed to consider certain factors, including Mr Alexander's health and the delay in prosecution. The Attorney-General contended that the decision was lawful and that the court should not interfere with the exercise of such a discretionary power.

The court found that the Attorney-General had considered the relevant factors and that there was no error in the decision-making process. The court held that the Attorney-General was not obligated to provide detailed reasons for his decision and that the factors raised by Mr Alexander were not grounds for judicial review. The court dismissed the application, finding that the decision was not legally unreasonable and that there was no basis for the court to intervene.

The final orders of the court were that the originating application be dismissed with costs. The court ruled that the decision of the Attorney-General was lawful and that Mr Alexander's application for judicial review was without merit.

Orders

Orders of the court

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.

Background

Background to the litigation

In between the filing of the originating application and the next listing of the matter, Mr Alexander appears to have changed solicitors twice. On 28 June 2019, my chambers received a communication from Powerhouse Law, noting that Powerhouse Law had only recently been retained by Mr Alexander, and informing the Court that the 2 July listing should be vacated as Mr Alexander no longer wished to proceed with his bail application. The matter was then listed for hearing on 31 October 2019, on the first mutually convenient date. An application for adjournment was then made at the commencement of the hearing, which I will discuss in more detail below.B INTRODUCTION & BACKGROUND In August 2016, the United Kingdom requested Mr Alexander’s extradition. United Kingdom authorities allege that between 1970 and 1976, Mr Alexander engaged in acts of physical and sexual abuse against six complainants aged between 11 and 15 years. The purpose of the extradition is said to be so that Mr Alexander, who will be 84 years of age in December, may face prosecution in the United Kingdom for the following offences:(a)one offence of indecent assault;(b)one offence of assault to injury;(c)two offences of lewd, indecent and libidinous practices and behaviour; and(d)three offences of assault to injury and lewd, indecent and libidinous practices and behaviour. In December 2016, the Minister for Justice issued a notice pursuant to s 16(1) of the Extradition Act 1988 (Cth) (Act) and in January 2017 an extradition arrest warrant was issued by a magistrate pursuant to s 12 of the Act. Mr Alexander was then arrested and, on 23 January 2017, he was remanded in custody pursuant to s 15(2) of the Act. In May 2017, a magistrate found Mr Alexander eligible for surrender to the United Kingdom. On 17 March 2019, the first respondent (Attorney-General) then made a decision pursuant to s 22(2) of the Act to surrender Mr Alexander to the United Kingdom. For the purpose of making his decision whether Mr Alexander should be surrendered, the Attorney-General had been provided in February 2019 with a document (Submission) prepared by the Attorney-General’s Department (Department). I will return to this Submission in more detail below. On the same date, the Attorney-General issued a warrant, pursuant to s 23 of the Act, authorising Mr Alexander’s surrender. Mr Alexander has remained in extradition detention while this proceeding has progressed. On 8 April 2019, Mr Alexander commenced this proceeding seeking judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of the Attorney-General’s decision made pursuant to s 22 of the Act, and the warrant issued by the Attorney-General pursuant to s 23 of the Act. Mr Alexander’s originating application seeks the following relief:(a)an order in the nature of a writ of certiorari to quash the Attorney-General’s decision made pursuant to s 22;(b)an order in the nature of a writ of certiorari to quash the warrant issued by the Attorney-General pursuant to s 23; and(c)an order in the nature of a writ of mandamus directing the Attorney-General to: (i) determine that Mr Alexander not be surrendered to the United Kingdom in response to the extradition request; and (ii) order Mr Alexander’s release.C LEGISLATIVE LANDSCAPE

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Lastly, as to the Delay Submission, it was said the offences were allegedly committed up to 49 years ago, and no explanation has been given for the delay. To the extent that this submission was advanced separately from the earlier points as to injustice or oppression, it is not a matter which is the subject of a precondition in s 22(3) to the exercise of power in s 22(2), nor was it an issue which Mr Alexander made representations about to the Attorney-General. This submission has no merit in the extradition context (whatever its merits in any other applications Mr Alexander may make elsewhere in the context of his prosecution). G CONCLUSION Despite Mr Smith saying all he could in support of the adjournment and substantive application, there is no error of a type attracting relief demonstrated nor is there a proper basis for me to, in effect, revisit the merits of the case. The application must be dismissed and there is no reason why costs should not follow the event.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.