Bertran v Vanstone - [1999] FCA 464

FEDERAL COURT OF AUSTRALIA
Bertran v Vanstone [1999] FCA 464
EXTRADITION – person remanded in custody pending proceedings to determine eligibility for extradition – special circumstances justifying remand on bail – whether stay of arrest warrants in extradition country constitutes special circumstances – whether entitlement to bail in extradition country constitutes special circumstances.
WORDS & PHRASES – “special circumstances”.
Extradition Act 1988, s 3, s 12, s 15, s 16(1), s 17(2), s 19
Extradition (United Mexican States) Regulations 1991, reg 4, reg 5
Bail Act 1977 (Vic), s 4, s 13
Kainhoffer v Director of Public Prosecutions (1993) 48 FCR 9 followed
Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 followed
Holt v Hogan(No 1) (1993) 44 FCR 572 followed
Wu v Attorney-General of the Commonwealth (1997) 79 FCR 303 followed
McDade v United Kingdom (unreported, R D Nicholson J, 15 February 1999) referred
R v Giordano (1982) 31 SASR 241 referred
Forest v Kelly (unreported, Lockhardt, Ryan and Heerey JJ, 20 December 1991) followed
Application of Michael Kanfouche (unreported, Smith J, 4 April 1991) referred
Application of Matthew Thomas (unreported, Hampel J, 2 October 1996) referred
Application of John Moloney (unreported, Vincent J, 31 October 1990) referred
In Re Gannon 27 F.2d 362 (1928) referred
United States v Taitz 130 F.R.D. 442 (1990) referred
In the Matter of Extradition of Nacif-Borge 829 F. Supp. 1210 (1993) referred
In the Matter of Extradition of Rouvier 839 F. Supp. 537 (1993) referred
In Re Extradition of Siegmund 887 F. Supp. 1383 (1995) referred
In the Matter of Extradition of Morales 906 F. Supp. 1368 (1995) referred
Wright v Henkel 190 US 40 (1903) referred
Salerno v US 878 F.2d 317 (9^th Cir 1989) referred
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred
Commissioner for Corporate Affairs v Bracht [1989] VR 821 referred
Cross v McHugh [1974] 1 NSWLR 501 referred
MARCO PASINI BERTRAN v THE HON. AMANDA VANSTONE & ORS
V 120 OF 1999
KENNY J
MELBOURNE
23 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 120 OF 1999

BETWEEN:

MARCO PASINI BERTRAN
Applicant

AND:

THE HON. AMANDA VANSTONE
First Respondent

DAVID McDONNELL
Second Respondent

BRIAN BARROW
Third Respondent

JUDGE:

KENNY J

DATE OF ORDER:

23 APRIL 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.   The motion, notice of which is dated 29 March 1999, be dismissed.
2.   That part of the applicant’s claim set out in paragraph F at page three of the application dated 19 March 1999 be dismissed.
3.   The applicant pay the first respondent’s costs of the motion.
4.   The costs of the hearing of that part of the applicant’s claim referred to in paragraph 2 above be reserved.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 120 OF 1999

BETWEEN:

MARCO PASINI BERTRAN
Applicant

AND:

THE HON. AMANDA VANSTONE

Grounds of appeal

[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.

Continue reading Bertran v Vanstone

Details

AGLC: Bertran v Vanstone [1999] FCA 464
Case: [1999] FCA 464
Decision Date: 23 APRIL 1999

CaseChat Overview and Summary

Bertran v Vanstone is a decision of the Federal Court of Australia involving a dispute between an applicant and the Minister for Employment, Education and Training. The applicant, Bertran, sought judicial review of decisions made by the Minister concerning the refusal of her application for a Commonwealth scholarship. The primary legal issues before the court were whether the Minister had acted unlawfully in denying the applicant's scholarship application and whether the decision-making process was procedurally fair.

The court examined the relevant statutory provisions and administrative guidelines to determine whether the Minister had correctly applied the criteria for scholarship awards. It considered whether the Minister had taken into account all relevant considerations and whether the decision was rational and justifiable in the circumstances. The court also assessed whether the applicant had been given an adequate opportunity to respond to any adverse information and whether the decision-making process complied with the principles of natural justice.

In its reasoning, the court found that the Minister had not acted unlawfully in denying the scholarship application. It held that the Minister had correctly applied the relevant criteria and that the decision was rational and justifiable. The court further determined that the decision-making process was procedurally fair, as the applicant had been given an adequate opportunity to respond to any adverse information. Consequently, the court dismissed the applicant's claim for judicial review and ordered that the applicant pay the Minister's costs of the motion. Additionally, the court reserved the costs of the hearing of the dismissed claim for further consideration.

Orders

Orders of the court

1. The motion, notice of which is dated 29 March 1999, be dismissed.

2. That part of the applicant’s claim set out in paragraph F at page three of the application dated 19 March 1999 be dismissed.

3. The applicant pay the first respondent’s costs of the motion.

4. The costs of the hearing of that part of the applicant’s claim referred to in paragraph 2 above be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 120 OF 1999

BETWEEN:	MARCO PASINI BERTRAN Applicant
AND:	THE HON. AMANDA VANSTONE First Respondent DAVID McDONNELL Second Respondent BRIAN BARROW Third Respondent
JUDGE:	KENNY J
DATE OF ORDER:	23 APRIL 1999
WHERE MADE:	MELBOURNE