Cabal v United Mexican States (No 2) - [2000] FCA 445

FEDERAL COURT OF AUSTRALIA
Cabal v United Mexican States (No 2) [2000] FCA 445
EXTRADITION – extradition proceedings before magistrate – extradition objections – substantial grounds for believing that there are extradition objections – real risk test – materials relevant to extradition objections – material before the magistrate for the purposes of review by the Court.
Extradition Act 1988 s 21
Zoeller v Federal Republic of Germany (1989) 23 FCR 282 applied
R v Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 WLR 459 applied
WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 cited
Commonwealth of Australia v Riley (1984) 5 FCR 8 cited
United States of America v Holt (1994) 49 FCR 501 followed
McDade v The United Kingdom [1999] FCA 1868 cited
CARLOS CABAL PENICHE, MARCO PASINI BERTRAN v UNITED MEXICAN STATES, LISA HANNAN, COMMONWEALTH OF AUSTRALIA
V 728 of 1999
FRENCH J
7 APRIL 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V728 OF 1999

BETWEEN:

CARLOS CABAL PENICHE
First Applicant

MARCO PASINI BERTRAN
Second Applicant

AND:

UNITED MEXICAN STATES
First Respondent

LISA HANNAN
Second Respondent

COMMONWEALTH OF AUSTRALIA
Intervening

JUDGE:

FRENCH J

DATE:

7 APRIL 2000

PLACE:

MELBOURNE

RULING ON MATERIAL ABLE TO BE CONSIDERED
BY THE COURT ON A SECTION 21 REVIEW
Introduction

These proceedings are brought, by way of review, under s 21 of the Extradition Act 1988 in relation to a magistrate’s decision that the applicants are eligible for extradition to Mexico and her order for their commitment to prison to await surrender.
The proceedings before the magistrate occupied some seventy days and involved a substantial quantity of documents and written and oral testimony. There were debates from time to time about material which would be received and treated as evidence by the magistrate. Some documents were tendered, marked as exhibits and treated as evidence, others were tendered and marked for identification but not treated as evidence by the magistrate. Some material was referred to but neither tendered nor marked for identification.
A question has arisen concerning which of the material that the applicants sought to rely upon before the magistrate, in one way or another, can be considered by the Court on review. The question arises in connection with material relating to the applicants’ objections to extradition that they are being prosecuted by Mexico on account of their political opinions or, if surrendered, are likely to be prejudiced or punished on account of those opinions.
Grounds for Review Relevant to Extradition Objections
The relevant grounds for the review, set out in par 42 of the statement of claim, are as follows:
“42.There are substantial grounds for believing that there are extradition objections within the meaning of section 7(b) and (c) of the Act in relation to all of the offences for which Mr Cabal and Mr Pasini are sought.”
The extradition objections asserted in par 42 rely upon s 7 of the Act which provides, inter alia:
“For the purposes of this Act, there is…

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.

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Details

Case: [2000] FCA 445
Decision Date: 7 APRIL 2000

CaseChat Overview and Summary

The case of Cabal v United Mexican States (No 2) involves extradition proceedings brought by Carlos Cabal Peniche and Marco Pasini Bertran against the United Mexican States, Lisa Hannan, and the Commonwealth of Australia. The applicants, both Mexican nationals residing in Australia, sought to challenge the magistrate's decision that they are eligible for extradition to Mexico and her order for their commitment to prison to await surrender. The applicants' primary concern was that they would be prosecuted on account of their political opinions or be prejudiced or punished because of those opinions if they were surrendered to Mexico. The Federal Court of Australia was tasked with determining which materials presented before the magistrate could be considered by the court on review, particularly in relation to the extradition objections raised by the applicants.

The main legal issue the court had to decide was the scope of materials that could be taken into account upon review of the magistrate's order under section 21 of the Extradition Act 1988. The applicants argued that various materials, including reports from Amnesty International, Human Rights Watch, the Inter-American Commission on Human Rights, the US Department of State, and journal articles, should be considered by the court. The respondents, on the other hand, argued that the court should only consider materials that were before the magistrate and accepted in evidence.

In its ruling, the court held that the materials before the magistrate comprise the testimony, documents, and things which were received by the magistrate in evidence and those which were tendered to the magistrate but not accepted in evidence. The court upon review is not limited to consideration of material received by the magistrate in evidence but may have regard to other material tendered to the magistrate but not received in evidence. In determining which of the materials before the magistrate it is to accept and take into account on the review, the court will apply criteria of relevance, weight, and fairness. It may reject material, whether accepted by the magistrate or not, on the grounds that it is irrelevant or that it is of little weight or that to receive it would unfairly prejudice a party to the review.

In conclusion, the court ruled that the materials that may be considered on review under section 21 are those that were before the magistrate. The court may consider material tendered to the magistrate but not received in evidence, and it will apply criteria of relevance, weight, and fairness in determining which materials to accept and take into account on review. The court also clarified that it is not limited to evidence admissible, according to the rules of evidence, to demonstrate that the fact constituting the objection exists. This ruling ensures that the court has the flexibility to consider relevant materials in extradition objections while maintaining fairness and relevance in its decision-making process.

Orders