CRIMINAL LAW – EXTRADITION – extradition to foreign countries – issue of notice by Attorney-General stating that extradition request received – review of decision to issue notice – arrest warrants issued in Mexico – foreign warrants subject to amparo stay – where stay prevents immediate execution of warrant – criminal prosecution not otherwise impeded – purpose of extradition – whether warrants “in force for the arrest” of requested person – whether stays in effect before requested person’s return to requesting state – scope of requesting state’s obligations under Treaty – whether requesting state under duty of honest and fair disclosure – whether allegation of bad faith against requesting state constitutes valid ground for review of notice – whether bad faith demonstrated – whether valid request
ADMINISTRATIVE LAW – JUDICIAL REVIEW – extradition proceedings – scope of Minister’s general discretion to issue notice – whether failure to take into account effect of stays on arrest warrants – whether failure to consider prescription of certain charges – whether knowledge of foreign state constructively available to Minister – no actual or constructive knowledge of stays or prescription – whether decision to issue notice unreasonable
FOREIGN RELATIONS – PUBLIC INTERNATIONAL LAW – standing – whether requested person in extradition proceedings may invoke rights of the requested state arising out of treaty – proper remedy for alleged bad faith of foreign state in making extradition request
WORDS & PHRASES – “warrant in force” “extraditable person”
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bertran v Vanstone [2000] FCA 359
Case
[2000] FCA 359
Decision Date
CaseChat Overview and Summary
The matter of Bertran v Vanstone involves judicial review applications brought by Carlos Cabal Peniche and Marco Pasini Bertran, both Mexican nationals, against the Minister for Immigration and Multicultural Affairs. The applicants challenge the legality of their detention and potential deportation, grounded in the issuance of arrest warrants against them in Mexico. These warrants allege various banking and fraud offences committed in Mexico between 1993 and 1994. The legal issues revolve around the validity and implications of these warrants, their alignment with Australian extradition laws, and whether the applicants' detention and proposed deportation comply with Australian legal standards.
The court had to determine if the arrest warrants issued by Mexican authorities sufficiently met the criteria under the Extradition Act 1988 for extradition to proceed. It also assessed whether the applicants' rights under Australian law were adequately safeguarded given the nature of the charges and the circumstances of their alleged offences. Furthermore, the court examined whether the Minister’s decision to detain and potentially deport the applicants was lawful, particularly in light of the severe penalties they faced in Mexico.
In its ruling, the court found that the warrants issued by Mexico sufficiently justified the applicants' arrest and extradition under Australian law. It concluded that the evidence presented was adequate for the purposes of extradition and that the applicants' detention was lawful. The court rejected the argument that the applicants' rights under Australian law were violated and dismissed the applications. Consequently, the applicants were ordered to pay the costs of the proceedings, including reserved costs.
The final orders were that the applications be dismissed, and the applicants were to pay the first respondent’s costs of and incidental to the proceeding, including reserved costs.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the first respondent’s costs of and incidental to the proceeding, including reserved costs.
Background
Background to the litigation
These are three applications for judicial review under s 39B(1) and (1A) of the Judiciary Act 1903 (Cth). For the most part, the applications raise the same or very similar issues of fact and law. factual background The circumstances in which the applications are made are as follows. The applicants in these three proceedings, Carlos Cabal Peniche and Marco Pasini Bertran, are citizens of the United Mexican States (“Mexico”). They left Mexico some years ago and have not returned there since.Carlos Cabal Between 31 August 1994 and 15 May 1998, a total of thirteen warrants for the arrest of Carlos Cabal were issued in Mexico by Federal District judges in Criminal Matters. The warrants for arrest allege the commission of what might loosely be termed banking offences. Twenty-three of the alleged offences concern the contravention of various provisions of the Mexican Law of Credit Institutions. Three of the alleged offences are for fraud. All the offences allegedly occurred in Mexico City between 1993 and 1994. According to a memorandum provided by the Attorney-General’s Department (“the Department”) to the Minister on 7 January 1999:The 23 offences against the Law of Credit Institutions allege that Cabal misused his position as President, major shareholder and member of the High Credit Committee of a bank, the Banco Union, to authorise loans and lines of credit to numerous companies whose solvency and ability to repay the loans was questionable. It is alleged that these companies were, in the main, controlled by Cabal himself and the loans received by these companies ultimately used by Cabal for his personal purposes, and acquiring another bank, the Banca Cremi. In some instances, the loans by Banco Union authorised by Cabal, which ultimately were received by the companies he controlled, were also used to benefit persons associated with him; in other instances money was diverted, with Cabal’s knowledge, from the accounts of other companies held at Banco Union to the accounts of the companies controlled by him to be used, ultimately, for his personal purposes. The amounts involved in the criminal conduct which is the subject of the 23 offences against the Law of Credit Institutions range from US$50 to $100 million. …The 3 fraud offences alleged against Cabal arise out of fraudulent scheme practised by officers in the Banco Union – with Cabal’s knowledge and authorisation – upon unsuspecting companies who approached the bank for loans. Selected companies seeking loans from Banco Union were persuaded by officers in Banco Union to participate in a scheme in which the loans would ostensibly be granted to the companies but would, in fact, be diverted to third party companies called the “terminal accredited persons”. The unsuspecting companies were told that the “terminal accredited persons” would pay them high rates of interest. The unsuspecting companies were required to sign blank promissory notes by way of security and hand these to officers in Banco Union. It is alleged that Cabal designed the scheme and authorised his officers in Banco Union to market the scheme to selected unsuspecting corporate customers.The “terminal accredited persons” in fact, were paper companies or companies mainly controlled by Cabal. It is alleged that neither Cabal nor his officers in Banco Union had any intention to ensure payment of high rates of interest by the “terminal accredited persons” to the unsuspecting victim companies. The money was not repaid to the companies but rather it was used by Cabal for his own purposes. At the end of the day the victim companies owed money to the bank but the “terminal accredited persons” were without any assets. In this scheme, 3 companies are alleged to have been defrauded of approximately US$54 to $57 million in each case. A total loss of US$242,722,590 was allegedly suffered by Banco Union and the defrauded companies as a result of Cabal’s conduct. Cabal was arrested in Australia pursuant to a provisional arrest warrant on 11 November 1998. The warrant had been issued on 10 November 1998 under s 12 of the Extradition Act 1988 (“the Act”) on the application of Mexico. Since 11 November 1998, he has been held in custody at Port Phillip Prison.