de Bruyn v Minister for Justice & Customs

Link copied
Case Copied 45 min read

FEDERAL COURT OF AUSTRALIA

de Bruyn v Minister for Justice & Customs [2004] FCAFC 334

EXTRADITION – appeal – determination by Minister to surrender appellant to Republic of South Africa under s 22 of the Extradition Act 1988 (Cth) – whether surrender would be unjust, oppressive or incompatible with humanitarian considerations for the purpose of reg 5(4) of the Extradition (Republic of South Africa) Regulations – whether Minister misunderstood what may amount to humanitarian considerations – whether prison conditions in the requesting country are excluded from consideration – whether Minister erred in concluding that surrender would not be unjust, oppressive or incompatible with humanitarian considerations because no certainty that appellant would contract HIV/AIDS if made to serve a sentence in a South African prison

Statutes

Crimes (Torture) Act 1988 (Cth)

Extradition Act 1988 (Cth), ss 23, 22(2), 16, 19, 22, 22(3)(b), 22(3)(e), 11(1), 11, 22(1), 18, 19(9)

Judiciary Act 1903 (Cth), s 39B

Cases

Buck v Bavone (1975-1976) 135 CLR 110 Cons

Cole v Whitfield (1988) 165 CLR 360 Cited

De Bruyn v Republic of South Africa [1999] FCA 1344 Cited

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 Foll

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Cited

Republic of South Africa v De Bruyn [1999] FCA 516 Cited

JACOB JOHANNES DE BRUYN v MINISTER FOR JUSTICE AND CUSTOMS, SENATOR CHRIS ELLISON
QUD 148 OF 2004

SPENDER, KIEFEL AND EMMETT JJ
22 DECEMBER 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 148 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JACOB JOHANNES DE BRUYN
APPELLANT

AND:

MINISTER FOR JUSTICE AND CUSTOMS, SENATOR CHRIS ELLISON
RESPONDENT

JUDGES:

SPENDER, KIEFEL AND EMMETT JJ

DATE OF ORDER:

22 DECEMBER 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The appeal be allowed.

2.        The orders of the primary judge be set aside.

3.In lieu of those orders, the determination of the Minister for Justice and Customs made on 29 January 2004 be set aside and the warrant signed on 29 January 2004 be quashed.

4.There be no order as to the costs of the appeal or of the proceeding before the Honourable Justice Dowsett.

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

QUD 148 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JACOB JOHANNES DE BRUYN
APPELLANT

AND:

MINISTER FOR JUSTICE AND CUSTOMS
RESPONDENT

JUDGES:

SPENDER, KIEFEL & EMMETT JJ

DATE:

22 DECEMBER 2004 

PLACE:

BRISBANE

REASONS FOR JUDGMENT

SPENDER J:

  1. I have had the benefit of reading in draft form the reasons for judgment of Kiefel J.  I agree that the appeal should be allowed for the reason which her Honour gives.   I agree with the orders proposed.  I wish to add a few comments of my own.

  2. The application the subject of this appeal…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read de Bruyn v Minister for Justice & Customs and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2004] FCAFC 334
Decision Date

CaseChat Overview and Summary

In the case of de Bruyn v Minister for Justice & Customs, the appellant sought to challenge the Minister's decision to approve his extradition to South Africa, primarily on the grounds that it would be unjust and oppressive due to the conditions in South African prisons, including the risk of torture and HIV/AIDS infection. The primary judge dismissed the appeal, but the appellant sought further review. The court was required to determine whether the Minister's decision was legally sound and whether the appellant's claims about the conditions in South African prisons warranted a refusal of extradition. The court examined the legal definition of 'torture' and whether the conditions described by the appellant constituted torture within the meaning of the Act. The court also considered whether the Minister's decision was based on a proper evaluation of the evidence provided.

The court held that the Minister's decision was correct and that the conditions described by the appellant did not amount to torture as defined in the Act. The court found that the appellant's claims were speculative and not supported by evidence. The court agreed with the primary judge's assessment that the appellant had not been denied procedural fairness and that the Minister's decision was not unreasonable. The court concluded that the Minister had properly considered the evidence and made a lawful decision.

The appeal was allowed, and the orders of the primary judge were set aside. The Minister's determination to extradite the appellant was quashed, and there was no order as to the costs of the appeal or the proceeding before the Honourable Justice Dowsett. The court's decision reinforced the importance of adhering to legal definitions and properly evaluating evidence in extradition cases.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the primary judge be set aside.

3. In lieu of those orders, the determination of the Minister for Justice and Customs made on 29 January 2004 be set aside and the warrant signed on 29 January 2004 be quashed.

4. There be no order as to the costs of the appeal or of the proceeding before the Honourable Justice Dowsett.

Background

Background to the litigation

Regulation 6 of the 2001 regulations provides that the repealed regulations continue to apply to extradition requests made before 1 August 2001, which is here the case. His Honour the primary judge applied the repealed regulations and the respondent accepts that that approach was correct. BACKGROUND TO THE MINISTER’S DECISION The Minister had provided to him a briefing paper and recommendations. Before his Honour, and on this appeal, it has been assumed that the Minister’s reasons for the determination under s 22(2) are those contained in the briefing paper, which the Minister is to be taken to have approved and adopted as his own. The briefing paper gave some background facts and identified issues arising under the Act. It identified, erroneously, the Treaty as containing criteria relevant to the case. The effect of this error was dealt with by his Honour the primary judge and will be referred to later in these reasons. The Minister was advised, by the briefing paper, that he might be satisfied of the matters required by the Act for surrender and that: ‘(f)none of the mandatory or discretionary grounds for refusal under the Treaty warrant refusing de Bruyn’s extradition; and (g)there are no grounds warranting refusal of de Bruyn’s extradition under your general discretion to refuse extradition.’ The briefing paper attached a number of documents, including representations made by the appellant and newspaper articles which had been submitted by him to the department. Also attached were South Africa’s response to those representations and some material supplied by South Africa with its response. The appellant’s reply was provided, together with representations made by his family. One of the matters raised by the appellant for the Minister’s consideration, and which assumes particular importance on the appeal, was the circumstances prevailing in prisons in South Africa. His representations referred to recent television programs, as well as newspaper articles and publications, which reported appalling conditions in South African jails. Five such newspaper articles were attached to his submission and were provided in the briefing report to the Minister. The appellant submitted that it was shown by these materials that: ‘Inmates are gang raped. AIDS are of an epidemic proportions. Assault and murder are regular occurrences. Mafia control the inside of the prisons. Prison wardens are understaffed and prisons over full. Wardens prefer to look [the] other way whilst rape and assault flourishes.’ He said that there were factors pertaining to him which made him a particular target. The first newspaper article referred to corruption in prisons and to the practice of selling young inmates to other inmates for sex. The focus of the second was on an ‘UNAIDS’ report relating to the AIDS epidemic in South Africa. It contained the following passage: ‘According to the UNAIDS report men in prisons are at particularly high risk of contracting HIV. In South Africa, according to Gideon Morris of the Judicial Inspectorate’s Office, a prison sentence is tantamount to a death sentence by HIV/AIDS. Morris estimated that between 70% and 80% of suspects held in South African jails are raped by fellow prisoners before they are even officially charged.’

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SPENDER, KIEFEL AND EMMETT JJ
Although it was not a matter then raised by the appellant, the briefing paper necessarily dealt with the requirement of s 22(3)(b) of the Act, that the Minister be satisfied that the appellant would not be subjected to torture following his surrender to South Africa. It said that he could be so satisfied. South Africa had acceded to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 10 December 1998. It then said: ‘There is no information available to the Department to support a conclusion that de Bruyn will be subjected to torture on surrender to South Africa.’ THE PRIMARY JUDGE’S DECISION The appellant was represented by counsel before his Honour the primary judge. Nevertheless reliance was placed upon the substantial documentation the appellant had supplied which, his Honour noted, was largely irrelevant. His Honour considered that there were three primary grounds advanced in support of the application: ·that the appellant was denied procedural fairness; ·that the Minister erred in concluding that the appellant would not be subjected to torture in South Africa; and ·that the Minister erred in not declining to surrender the appellant on the basis that it would be unjust, oppressive or incompatible with humanitarian considerations to do so. His Honour rejected the claim of want of procedural fairness. The appellant claimed that he should have had more time to put material before the Minister. That material would have dealt further with conditions in South African jails. His Honour observed however that the appellant had been able to supply a substantial amount of material but in any event had been given an adequate opportunity to do so. He had been allowed a period of weeks in which to put material before the Minister. The extradition proceedings had been in train since 1997. In relation to the question of torture, relevant to s 22(3)(b) of the Act, his Honour referred to the definition of the word ‘torture’ provided by the Shorter Oxford Dictionary, since the word was not defined in the Act. That definition is, relevantly: ‘…(the infliction of) severe physical or mental suffering; anguish, agony, torment. … The infliction of severe bodily pain as a punishment or as a means of interrogation or persuasion; a form or instance of this.’ In the Convention referred to in the briefing paper, and which is scheduled to the Crimes (Torture) Act 1988 (Cth), the word ‘torture’ is defined to mean: ‘… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’

Ratio Decidendi

Legal Principle Established

Established by: SPENDER, KIEFEL AND EMMETT JJ

The appellant also submitted that it was unreasonable or unfair and unjust to return him to South Africa if he could not be placed in protective custody. South Africa had advised that he would not be. This was not a point which was raised before his Honour, but in any event it has regard to the same allegations concerning the prison conditions which are to be considered in relation to the requirements of reg 5(4)(b) of the Regulations. CONSIDERATION OF THE APPEAL The question as to whether the prison conditions referred to in the newspaper articles, concerning the rape of inmates by gang members, amounts to torture was not raised before the Minister. As his Honour’s reasons disclose however the conclusion reached by the Minister, that the appellant would not be subjected to torture if surrendered, is correct. It is supported by a consideration of the meaning to be given to the term ‘torture.’ His Honour held that the reference to torture in the Act is directed to institutionalised conduct by government authorities for the purpose of punishment, intimidation or coercion. I respectfully agree. The conduct identified by the appellant, of inmates towards other inmates, is not of this kind. And it is not converted to institutionalised conduct in the sense referred to by his Honour because some corrupt wardens ignore or even encourage it. The case put forward by the appellant contained assertions that he was at particular risk of being raped and contracting HIV because of factors personal to him. They were not accepted in the briefing note, on the basis that there was no evidence to support them. The appellant’s claims in this regard were mere assertions, unaccompanied by any material to support them. No relevant error is disclosed in such an approach. There were however newspaper reports which provided the basis for the appellant’s claim that male prisoners generally in South African jails were at high risk of infection of HIV as a result of rape by fellow inmates and through overcrowding. The reference in par 38 of the briefing note to figures of 7.75 per 1000 as the rate of natural death in the prison population, caused primarily by HIV/AIDS, may suggest that the higher figures referred to in some newspaper reports were not accepted by the author of the briefing note as being as reliable as the Annual Report of the South African authorities, but that is as far as any assessment of the reports, and the appellant’s claims based upon them, goes. His Honour the primary judge held that there was no reason to believe that the appellant would be raped in prison. With respect, that was not a finding made in the briefing note and is not one which can be attributed to the Minister. The briefing note, drawing upon a reference in the submissions for South Africa, merely observed that it was ‘conceivable’ that the rate of HIV/AIDs-related deaths was the same in prison as it was outside, in the general population. It was therefore unknown or ‘uncertain’ whether the appellant would contract HIV/AIDs if he was in prison.