de Bruyn v Ellison - [2004] FCA 880

FEDERAL COURT OF AUSTRALIA
de Bruyn v Ellison [2004] FCA 880
EXTRADITION – review of decision to surrender under s 22 of the Extradition Act 1988 (Cth) – whether Minister correctly addressed s 22(3)(b) of the Act – whether violence in prisons may amount to torture – whether Minister correctly addressed additional requirements imposed by regulations – whether addressing incorrect regulations with more favourable exceptions voids decision – whether condition of prisons a relevant consideration in deciding if extradition would be unjust, oppressive or incompatible with humanitarian considerations
Judiciary Act 1903 (Cth) s 39B
Extradition Act 1988 (Cth) ss 11, 16, 19, 22
Crimes (Torture) Act 1988 (Cth) s 6
Extradition (South Africa) Regulations 2001 regs 4, 6, Sch 1 art 3 par 2
Extradition (Republic of South Africa) Regulations subreg 5(4)
Extradition (Commonwealth Countries) Regulations
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
De Bruyn v Republic of South Africa [1999] FCA 1344 referred to
Republic of South Africa v De Bruyn [1999] FCA 516 referred to
Foster v Minister for Customs and Justice (2000) 200 CLR 442 considered
The New Shorter Oxford English Dictionary
JACOB JOHANNES DE BRUYN v THE MINISTER FOR JUSTICE AND CUSTOMS, SENATOR CHRIS ELLISON
Q 44 OF 2004
DOWSETT J
8 JULY 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 44 OF 2004

BETWEEN:

JACOB JOHANNES DE BRUYN
APPLICANT

AND:

THE MINISTER FOR JUSTICE AND CUSTOMS, SENATOR CHRIS ELLISON
RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

8 JULY 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.        The application be dismissed.
2.        The applicant pay the respondent’s costs of the application.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 44 OF 2004

BETWEEN:

JACOB JOHANNES DE BRUYN
APPLICANT

AND:

THE MINISTER FOR JUSTICE AND CUSTOMS, SENATOR CHRIS ELLISON
RESPONDENT

JUDGE:

DOWSETT J

DATE:

8 JULY 2004

PLACE:

BRISBANE

REASONS FOR JUDGMENT
THE APPLICATION

This is an application (purportedly pursuant to s 39B of the Judiciary Act 1903 (Cth)) for review of a decision (the “decision”) of the respondent (the “Minister”) under s 22 of the Extradition Act 1988 (Cth) (the “Act”) that the applicant (“Mr de Bruyn”) be surrendered to the Republic of South Africa (“South Africa”). The Minister made the decision on behalf of the Attorney-General. He concedes that review is available.
FACTS
Mr de Bruyn is a citizen of South Africa. There is some uncertainty concerning the dates of his departure from that country and arrival in Australia. He claims to have migrated to Australia on 22 January 2001, but South Africa alleges that he departed in 1992. He was initially arrested in Australia in connection with these proceedings in October 1997. To that extent, his claim must be incorrect. It is not necessary to take that matter any further. His former wife and his children live in this country. His children were,…

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: [2004] FCA 880
Decision Date: 8 JULY 2004

CaseChat Overview and Summary

In the case of de Bruyn v Ellison, the applicant, Mr de Bruyn, sought review of a decision by the Minister for Justice, acting on behalf of the Attorney-General, to surrender him to the Republic of South Africa for prosecution on charges of fraud and theft. Mr de Bruyn, a South African citizen, had been living in Australia since 1992, according to South Africa, or 2001, according to Mr de Bruyn. The South African government requested his extradition in June 1997, leading to an extradition process that saw initial setbacks and eventual success in 2004. Mr de Bruyn’s application for review was grounded on the argument that surrendering him to South Africa would disadvantage his children due to their separation from him. The legal issues before the court involved whether the Minister had correctly applied the Extradition Act 1988 (Cth) in making his decision and if Mr de Bruyn’s separation from his children constituted an error warranting review.

The court examined whether the Minister appropriately considered the relevant statutory criteria for extradition, particularly under the Extradition Act and the Extradition Treaty with South Africa. It considered if the Minister had failed to address the correct legal question or had misapplied the law in his decision-making process. The court noted that the Minister appeared to rely on a departmental briefing paper, which referenced the Treaty and new regulations rather than the repealed regulations. Despite this potential oversight, the court found that the Minister’s decision did not demonstrate a relevant error. The application for review was dismissed, and Mr de Bruyn was ordered to pay the respondent’s costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

Background

Background to the litigation

This is an application (purportedly pursuant to s 39B of the Judiciary Act 1903 (Cth)) for review of a decision (the “decision”) of the respondent (the “Minister”) under s 22 of the Extradition Act 1988 (Cth) (the “Act”) that the applicant (“Mr de Bruyn”) be surrendered to the Republic of South Africa (“South Africa”). The Minister made the decision on behalf of the Attorney-General. He concedes that review is available.FACTS Mr de Bruyn is a citizen of South Africa. There is some uncertainty concerning the dates of his departure from that country and arrival in Australia. He claims to have migrated to Australia on 22 January 2001, but South Africa alleges that he departed in 1992. He was initially arrested in Australia in connection with these proceedings in October 1997. To that extent, his claim must be incorrect. It is not necessary to take that matter any further. His former wife and his children live in this country. His children were, at the time of the decision, aged 25, 22 and 16. They do not live with him and have had little contact with him in recent years. On 24 June 1997, South Africa requested Mr de Bruyn’s extradition in order to prosecute him for fraud and theft. The amount of 1.2 million rand was allegedly stolen from a bank in Johannesburg. On 11 August 1997, the Minister issued a notice under s 16 of the Act, commencing the extradition process. A magistrate determined that the applicant was not ‘eligible for surrender’ under s 19 of the Act. This decision was set aside by Burchett J. See Republic of South Africa v De Bruyn [1999] FCA 516. An appeal against that decision was unsuccessful: see De Bruyn v Republic of South Africa [1999] FCA 1344. Mr de Bruyn, who had been at large, then absconded. In February 2003, he was arrested in Queensland and remanded in custody pending a determination pursuant to s 22. The Minister made such a determination on 29 January 2004. The applicant seeks review of that decision. The Minister gave no reasons for the decision but appears to have acted upon a departmental briefing paper. The matter has proceeded upon the basis that the Minister’s reasons reflected the content of that paper.REQUIREMENTS FOR ISSUE OF A SURRENDER WARRANT The Attorney-General may issue a warrant for surrender under s 23 if he or she has made a determination ‘under subsection 22(2) that a person is to be surrendered to an extradition country in relation to an extradition offence…’. The Act authorizes extradition to a country which has been declared to be an ‘extradition country’. South Africa has been so declared at all material times. Subs 22(2) provides:‘The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.’ ‘Eligible person’ means a person eligible for surrender. In the earlier proceedings in this Court, Burchett J determined that the applicant was eligible for surrender. Subsection 22(3) relevantly provides that a person may be surrendered if:‘(a) the Attorney-General is satisfied that there is no extradition objection in relation to the offence;(b)the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture;(c)where the offence is punishable by a penalty of death–by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:(i)the person will not be tried for the offence;(ii)if the person is tried for the offence, the death penalty will not be imposed on the person;(iii)if the death penalty is imposed on the person, it will not be carried out;(d)the extradition country concerned has given a speciality assurance in relation to the person;(e)where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:(i) surrender of the person in relation to the offence shall be refused; or(ii) surrender of the person in relation to the offence may be refused;in certain circumstances – the Attorney-General is satisfied:(iii)where subparagraph (i) applies – that the circumstances do no exist; or(iv)where subparagraph (ii) applies – either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and(f)the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.’

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DOWSETT J

Mr de Bruyn’s argument is that if he is extradited to South Africa, he will be separated from his children and that this would be to their disadvantage. It seems that he has not had a close relationship with them in any event. There is also the question of their ages. The matter was considered in the briefing paper. It cannot be said that a proper consideration of the issue must necessarily have resulted in refusal of Mr de Bruyn’s surrender.CONCLUSION AND ORDERS In those circumstances, Mr de Bruyn has demonstrated no error which would justify setting aside the Minister’s decision. The application must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

In any event, the mere fact that incidents of that kind have previously occurred in the South African prison system does not mean that it is likely that Mr de Bruyn will suffer in that way. He has suggested that he might be subject to special attention because he is of Afrikaans extraction, well-educated, has left South Africa and because of his age. These are mere assertions which do not seem to be supported by any evidence. In any event, it cannot be said that the Minister addressed the wrong question or failed to address the issue. Nor can it be said that a proper consideration of the evidence must inevitably have led to his not being satisfied that Mr de Bruyn would not be subjected to torture. No relevant error has been demonstrated.“… unjust, oppressive or incompatible with humanitarian considerations …” Pursuant to subreg 5(4) of the repealed regulations:‘The Attorney-General may decline to issue a surrender warrant or temporary surrender warrant under Part II of the Act in relation to a person if:(a) the person is an Australian citizen; or(b)the Attorney-General, while taking into account the nature of the offence to which the extradition request relates and the interests of the requesting country, is nevertheless of the opinion that, in the circumstances of the case, it would be unjust, oppressive or incompatible with humanitarian considerations to surrender the person to that country.’ This provision has been superseded by par 2 of Article 3 of the Treaty. Subparagraphs 2(a) to (e) could not be relevant to this decision even if the new regulations, and therefore the Treaty, applied to it. Subparagraphs 2(g) and (h) provide that extradition may be refused:‘(g)if the Requested State, while also taking into account the nature of the offence and the interests of the Requesting State, considers that, in the circumstances of the case, including the age, health or other personal circumstances of the person whose extradition is sought, the extradition of that person would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment; or(h)if, by reason of the trivial nature of the request, or the period of time since the person whose extradition is sought is alleged to have committed the offence or since he or she came to be at large, as the case may be, or because the accusation against the person accused is not made in good faith or in the interests of justice, it would be, having regard to all circumstances, unjust or oppressive to extradite that person.’ The briefing paper demonstrates that the relevant officer approached the matter upon the basis that the Treaty and new regulations, rather than the repealed regulations, applied. There is no reference to the repealed regulations, but numerous references to particular terms of the Treaty. The assumption that the Minister made his decision upon the basis of the briefing paper suggests that he therefore failed to consider the correct question, namely the way in which repealed subreg 5(4) should be applied in this case. However, because of the similarities between the two provisions, it is appropriate to examine the differences between the two provisions, the precise nature of the case advanced by Mr de Bruyn and the way in which it was dealt with by the Minister.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 44 OF 2004

BETWEEN:	JACOB JOHANNES DE BRUYN APPLICANT
AND:	THE MINISTER FOR JUSTICE AND CUSTOMS, SENATOR CHRIS ELLISON RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	8 JULY 2004
WHERE MADE:	BRISBANE

JUDGE:	DOWSETT J
DATE:	8 JULY 2004
PLACE:	BRISBANE