Cabal v United Mexican States

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FEDERAL COURT OF AUSTRALIA

Cabal v United Mexican States [2001] FCA 427

EXTRADITION – review of determination of eligibility for surrender by magistrate – nature of review process – nature of function conferred on magistrate and court – constitutional validity – Extradition Act 1988 (Cth) – request for extradition – supporting documents – no inquiry into foreign law – criteria for characterisation of documents issued by requesting country as “warrants” – statement of conduct – sufficiency – more than one offence in a statement – extradition objections – purpose of prosecution or punishment for political opinions – assessment on premise that offences committed – substantial grounds for believing – prejudice on account of political opinions – exclusion of material by magistrate – judicial review of magistrate’s decision – whether subsumed in s 21 review.

CONSTITUTIONAL LAW – separation of powers – review by court of magistrate’s administrative decision – whether exercise of judicial powers – nature of review.

WORDS AND PHRASES – “substantial grounds for believing”, “political opinions”.

Extradition Act 1988 (Cth) ss 3, 7(b), (c), 19(2)(d), 19(3)(a), 19(3)(c)(ii), 19(5), 21(6)(d), 22
Judiciary Act 1903 (Cth) ss 39B(1A)
Evidence Act 1995 (Cth) ss 135, 136

Cabal v United Mexican States (No 3) [2000] FCA 1204 at pars 4, 8, 32, 42, 85-87, 104, 144-145, 153, 216, 218, 219, 220, 226, 235, 237, 238, 239, 240, 241, 243, 244 and 245
Bertran v Vanstone (2000) 173 ALR 63 at 76-88 referred to
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 538 referred to
Republic of South Africa v Dutton (1997) 77 FCR 128 at 136 referred to
The Queen v Quinn Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 6, 8 and 18 followed
McDade v The United Kingdom [1999] FCA 1868 at par 22 referred to
Zoellerv Federal Republic of Germany (1989) 23 FCR 282 at 290, 299, 300 and 303 referred to

The Queen v Davison (1954) 90 CLR 353 at 366 followed

Nicholas v The Queen (1998) 193 CLR 173 at 207 followed
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360 followed
The Queen v Trade Practices Tribunal, Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373, 378 and 390 followed
Narain v Parnell (1986) 9 FCR 479 referred to
Schlieske v Federal Republic of Germany (No 2) (1987) 76 ALR 417 at 422 referred to
Todhunter v United States of America (1995) 57 FCR 70 at 80 referred to
Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 483, 485-486, 488-491, 505, and 521-522 followed
Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 129 and 139 followed
Federal Republic of Germany v Parker (1988) 84 FCR 323 at 341-2 referred to
National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 226 referred to
Peniche v Vanstone (2000) 101 FCR 112 referred to
Rahardja v Republic of Indonesia [2000] FCA 1297 at pars 75-77 referred to

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Details
Case
[2001] FCA 427
Decision Date

CaseChat Overview and Summary

The matter before the Court involved an appeal by Mr Carlos Cabal Peniche and Mr Marco Pasini Bertran against the decision of a Judge of the Federal Court of Australia, dismissing their application for review of a decision of a magistrate. The decision in question affirmed their eligibility for surrender to Mexico in relation to several extradition offences. The central issue in the appeal was whether certain sections of the Extradition Act 1988 (Cth) were valid and if the documents provided by Mexico were sufficient to warrant the surrender. Specifically, the appellants challenged the constitutionality of section 21 of the Act, which they argued improperly conferred administrative functions upon the Court. They also contended that the documents tendered by Mexico did not adequately describe the offences and did not comply with the statutory requirements for warrants. Furthermore, the appellants argued that they had been subjected to extradition proceedings on account of their political opinions, thus constituting an extradition objection under section 7 of the Act.

The Court considered the constitutionality of section 21 and concluded that while the hearing before the magistrate was administrative in nature, the review process by the Court was judicial in character. The Court rejected the argument that section 21 was invalid, finding it to be a statutory rehearing rather than judicial review. The Court further held that the documents provided by Mexico sufficiently outlined the offences and met the formal requirements of the Act. It also found no merit in the appellants' argument regarding political motivation in the extradition process. Consequently, the Court dismissed the appeal and affirmed the magistrate's decision.

The Court's decision upheld the validity of the Extradition Act and the process by which the appellants' surrender was authorised. The Court's ruling clarified the nature of the review process under the Act, distinguishing it from a purely administrative function. Additionally, the Court confirmed that the documents tendered by Mexico were adequate for the purposes of extradition. The appellants' contention that they were being extradited for political reasons was also rejected by the Court. The appeal was dismissed, and the appellants were ordered to pay the first respondent's costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellants pay the first respondent’s costs of and incidental to the appeal.

Background

Background to the litigation

The appellants, Mr Carlos Cabal Peniche (Mr Cabal) and Mr Marco Pasini Bertran (Mr Pasini), appeal against the decision of a Judge of this Court (French J) dismissing their application for review of a decision of the second respondent, a magistrate and affirming her decision that each of them was eligible for surrender to the first respondent, the United Mexican States (“Mexico”) in relation to a number of extradition offences. The judgment of his Honour which is the subject of this appeal is Cabal v United Mexican States (No 3) [2000] FCA 1204.THE BACKGROUND FACTS Apart from a minor and insignificant transcription error which will shortly be noted, there was no challenge to the statement of background facts in the judgment of French J, much of which was derived from material emanating from Mr Cabal. That statement is contained in paragraphs 6 to 83 inclusive of his Honour’s Reasons for Judgment. In the interests of brevity we do not repeat it in its entirety. We propose, rather, to attempt a summary of that statement in order that the issues debated before us can be more readily understood without regard back to the judgment under appeal. To the extent that the summary here set out is necessarily incomplete, the full text of the statement, which we accept without reservation, can be taken to have been incorporated by reference into these reasons. Mr Cabal is a citizen of Mexico and describes himself as an entrepreneur. Mr Pasini is likewise a citizen of Mexico and is Mr Cabal’s brother-in-law. They were both arrested in Melbourne by the Australian Federal Police following requests for their extradition received from Mexico. After a difficult start Mr Cabal was, at various times, involved in real estate subdivision, the export of shrimp to the United States of America, banana production and export. He later diversified into pineapples and papayas. These activities were largely in the south-eastern states of Mexico, (especially Tabasco, Chiapas and Campeche) a region in respect of which he claimed to have developed a particular interest. That region had been of little interest as an area of investment and development in the traditional money centres in the centre and in the north. In 1991 Mr Cabal met President Salinas, then President of Mexico who, in 1990 announced his intention to privatise Mexico’s banks. Mr Cabal organised a group to buy a bank that could help finance development in the south-east of Mexico. A tender on behalf of the group to purchase a bank, then known as Banco BCH and subsequently referred to as Banco Union was ultimately successful. In achieving success, Mr Cabal alienated a Mr Creel, who had been a competitor in the tender process and who had the support of a Mr Aspe and a Mr Ortiz, officials charged with carrying out the President’s privatisation program. However, his Honour rejected a suggestion that Mr Cabal had engendered some long term resentment on the part of government because of his tactics in relation to the bid. Mr Cabal ultimately became president of Banco Union.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HILL, WEINBERG AND DOWSETT JJ
However, s (3) of that section provides that the eligible person is only to be surrendered in respect of an offence or offences if the Attorney-General is satisfied, inter alia that there is no extradition objection in relation to the offence.THE JUDGMENT APPEALED FROM The learned primary judge decided all of the objections to the surrender adversely to Mr Cabal and Mr Pasini. The appellants filed numerous grounds of appeal putting in issue all of the matters argued before his Honour . On the third day of the hearing of the appeal, senior counsel for the appellants indicated that the appellants wished to abandon many of the grounds of appeal. In essence the abandoned grounds may be described as those which dealt with the question whether the documents tendered by Mexico complied with the formal requirements of the Act. The grounds of appeal which remain fall within the following headings:1.Whether s 21 of the Act was invalid as conferring upon the Court an administrative, rather than a judicial function.2.Whether the documents tendered by Mexico set out conduct constituting the offence as required by s 19(3)(c)(ii) of the Act.3.Whether the documents referred to above as “warrants” fell within s 19(3)(a) of the Act.4.Whether the learned primary judge erred in holding that the appellants had not made out an extradition objection under s 7 of the Act – that is a case that they had been proceeded against because of their political opinions. Relevant to the last of these grounds is the use to which material which the magistrate rejected might be put by a judge on review. Given the concession made by the appellants it is unnecessary to record the decision of the learned primary judge so far as it dealt with matters no longer at issue between the parties. The following summary of his Honour’s reasons is accordingly limited to the matters which remain in issue.The judgment appealed from – The Constitutional question The learned primary judge rejected the submission that the Act was invalid as purporting to confer upon the Court an administrative function and to require the Court to exercise administrative powers in the performance of that function. While, in his Honour’s view the hearing before the magistrate was properly to be characterised as an administrative hearing (cf Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528), it did not follow that the Court in reviewing the order of the magistrate was exercising an administrative function. In reaching his conclusion French J accepted the description of the nature of the review to be undertaken by the Court as stated by Hill J in Republic of South Africa v Dutton (1997) 77 FCR 128 at 136 as follows:“From these matters it seems to me clear that the review contemplated by s 21 is not a species of judicial review in the sense of a review limited to correcting legal error. It is a rehearing in which the court undertaking the review is authorised to reach its own conclusions on eligibility for surrender, but a rehearing which is limited statutorily to the material before the magistrate. Fresh evidence it would seem would not be admissible. This is hardly likely to cause difficulty since the hearing before the magistrate, the subject of the review, is, in any event, largely a hearing on documentary material.”

Ratio Decidendi

Legal Principle Established

Established by: HILL, WEINBERG AND DOWSETT JJ

Full text does not contain this section.