FEDERAL COURT OF AUSTRALIA
Hala v Minister for Justice [2015] FCAFC 13
Citation: Hala v Minister for Justice [2015] FCAFC 13 Appeal from: Hala v Minister for Justice [2014] FCA 457 Parties: RICHARD HALA v MINISTER FOR JUSTICE File number: WAD 136 of 2014 Judges: DOWSETT, TRACEY & KATZMANN JJ Date of judgment: 16 February 2015 Catchwords: EXTRADITION – decision by Minister to surrender appellant to the Czech Republic in relation to an extradition offence – jurisdictional error – whether any failure to make the surrender decision “as soon as reasonably practicable, having regard to the circumstances” was a jurisdictional error.
ADMINISTRATIVE LAW – procedural fairness – where extraditable person given an opportunity to be heard on whether he or she should be extradited and opportunity taken up, whether Minister obliged to provide extraditable person with an opportunity to reply to the extradition country’s response – whether response contained new information which was credible, relevant and significant.
Legislation: Acts Interpretation Act 1901 (Cth) s 19A
Extradition Act 1988 (Cth) ss 5, 6, 7, 12, 15, 16, 16A, 19, 22
Extradition (Czech Republic) Regulations2007 (Cth)
Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth)
Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth)Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Brock v Minister for Home Affairs [2011] FCAFC 167
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223
Mokbel v Attorney-General for the Commonwealth for Australia (2007) 162 FCR 278
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Santhirarajah v Attorney-General (Cth) (2012) 206 FCR 494
Snedden (aka Vasiljkovic) v Minister for Justice (Cth) (2013) 141 ALD 351; [2013] FCA 1202
Snedden v Minister for Justice for the Commonwealth of Australia (2014) 315 ALR 352; [2014] FCAFC 156
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152Date of hearing: 13 November 2014 Date of last submissions: 19 December 2014 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 77 Counsel for the Appellant: Mr K J de Kerloy with Mr A Golem Solicitor for the Appellant: Herbert Smith Freehills Counsel for the Respondent: Dr S Donaghue QC with Mr G Hill Solicitor for the Respondent: Commonwealth Attorney-General’s Department
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 136 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: RICHARD HALA
AppellantAND: MINISTER FOR JUSTICE
Respondent
JUDGES:
DOWSETT, TRACEY & KATZMANN JJ
DATE OF ORDER:
16 FEBRUARY 2015
WHERE MADE:
SYDNEY (HEARD IN PERTH)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN…
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Details
- Case
- [2015] FCAFC 13
- Decision Date
CaseChat Overview and Summary
In the case of Hala v Minister for Justice, the appellant, Mr Hala, sought judicial review of the Minister for Justice's decision to surrender him to the Czech Republic in relation to an extradition offence. Mr Hala argued that the delay in making the surrender decision and the failure to provide him with an opportunity to respond to the Czech Republic's response to his submissions constituted jurisdictional errors and breaches of procedural fairness. The primary judge dismissed the appeal, holding that neither contention had merit. Mr Hala appealed to the Full Court of the Federal Court of Australia.
The central legal issues in this appeal were whether the failure to make a surrender decision "as soon as reasonably practicable" was a jurisdictional error and whether the Minister was obliged to provide Mr Hala with an opportunity to respond to the Czech Republic's response. The court considered these issues in the context of the statutory framework governing extradition decisions and principles of administrative law. The court was required to determine whether the statutory provisions and principles of procedural fairness necessitated a different outcome to that reached by the primary judge.
The Full Court held that the failure to make a surrender decision within the time frame specified in the Extradition Act did not constitute a jurisdictional error. The court found that the time stipulation conditioned only the time for performance of the power, not the existence of the power, and could be enforced by an order in the nature of mandamus. This aligned with the observations made by Davies J in Snedden (aka Vasiljkovic) v Minister for Justice (Cth). Regarding procedural fairness, the court held that the content of procedural fairness must be determined by the statutory background and the circumstances arising in a particular case. In this case, the court found that there was no obligation to give Mr Hala the opportunity to respond to the Czech Republic's response as he had already had the opportunity to define the ambit of the issues and provide submissions.
Accordingly, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs. This outcome affirms the primary judge's decision and clarifies the scope of the Minister's discretion under the Extradition Act and the principles of procedural fairness in extradition cases.
The central legal issues in this appeal were whether the failure to make a surrender decision "as soon as reasonably practicable" was a jurisdictional error and whether the Minister was obliged to provide Mr Hala with an opportunity to respond to the Czech Republic's response. The court considered these issues in the context of the statutory framework governing extradition decisions and principles of administrative law. The court was required to determine whether the statutory provisions and principles of procedural fairness necessitated a different outcome to that reached by the primary judge.
The Full Court held that the failure to make a surrender decision within the time frame specified in the Extradition Act did not constitute a jurisdictional error. The court found that the time stipulation conditioned only the time for performance of the power, not the existence of the power, and could be enforced by an order in the nature of mandamus. This aligned with the observations made by Davies J in Snedden (aka Vasiljkovic) v Minister for Justice (Cth). Regarding procedural fairness, the court held that the content of procedural fairness must be determined by the statutory background and the circumstances arising in a particular case. In this case, the court found that there was no obligation to give Mr Hala the opportunity to respond to the Czech Republic's response as he had already had the opportunity to define the ambit of the issues and provide submissions.
Accordingly, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs. This outcome affirms the primary judge's decision and clarifies the scope of the Minister's discretion under the Extradition Act and the principles of procedural fairness in extradition cases.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
This appeal raises two substantive questions. The first is one upon which judges of this Court have disagreed. It is whether the failure to make a surrender determination “as soon as reasonably practicable, having regard to the circumstances”, as s 22(2) requires, is a jurisdictional error. The second is whether, in failing to give Mr Hala the opportunity to respond to submissions provided by the Czech Republic, the Minister denied Mr Hala procedural fairness. The answer to both questions is “no”. It follows that the appeal must be dismissed. Background facts The facts were uncontroversial. The following summary is largely derived from the primary judge’s reasons. Mr Hala was born in the Czech Republic. He came to Australia in 1986 and took out Australian citizenship two years later. On 28 June 2010 Mr Hala was convicted of fraud by a Czech court. He was convicted in his absence. The fraud was allegedly committed in the Czech Republic during 1995. The amount involved was approximately AUD 287,000. Mr Hala was sentenced (again in his absence) to five years imprisonment. On 10 January 2011 the Czech Republic made a request to Australia for Mr Hala’s extradition. We interpolate that it was undisputed that, if he were surrendered, he would have an unassailable right to a retrial and to legal representation at the retrial. On 20 September 2012 a magistrate determined that Mr Hala was eligible for surrender and made an order under s 19(9) of the Extradition Act committing him to prison to await surrender in relation to one count of fraud, contrary to s 209(1, 5a) of the Czech Penal Code. It is because of this order that Mr Hala became an “eligible person” for the purposes of s 22(2). The next day, in a letter addressed to Mr Hala’s then lawyer, Alasdair Putt, the Attorney-General’s Department (“Department”) invited Mr Hala to provide to the Minister within 14 days any reasons why he should not be surrendered to the Czech Republic. He was told that information he provided may be disclosed to law enforcement or other government authorities in Australia or “foreign countries” in order to determine the weight to be attached to it. On 28 September 2012 Mr Putt accepted the invitation on his client’s behalf. He submitted that Mr Hala should not be surrendered (amongst other reasons) because:(a)Mr Hala had resided in Australia since 1986 and had been an Australian citizen since 1988;(b)The alleged offending occurred in 1995 and it would be almost impossible for him to have a fair trial after so long, “particularly since the Czech Republic have been aware of his whereabouts in Western Australia since at least 1997”;(c)The Czech Republic had provided no information to Mr Hala to explain the undue delay and he was not responsible for it;(d)Mr Hala had not left the Czech Republic as a fugitive;(e)The case against him was not being prosecuted in good faith;(f)There were lengthy delays in the Czech Republic’s legal system which meant that he would be held in custody for at least a year before a retrial;(g)He had various health issues;(h)Prisons in the Czech Republic were overcrowded and there were poor medical facilities;(i)While the offence was not trivial, it was of such a nature as not to compel surrender.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
It was not in dispute that the conditions in paras (a) to (e) had been fulfilled in this case. The issues touch upon the exercise of the general discretion conferred by para (f).The decision of the primary judge In the proceeding before the primary judge Mr Hala sought judicial review of the Minister’s decision on five grounds. As only two of them are the subject of this appeal, it is unnecessary to recount them all. On the two in question, the primary judge’s findings were set out at [8]–[18] and [45]–[61] respectively. On the first question, Mr Hala contended that a delay of nearly eight months between the receipt of the response of the Czech Republic and the making of the surrender determination amounted to a failure to make the determination under s 22 “as soon as practicable, having regard to the circumstances”. He argued that the Minister’s determination was consequently “void” or beyond power. For this proposition Mr Hala relied on the judgment of North J in Santhirarajah v Attorney-General (Cth) (2012) 206 FCR 494 (“Santhirarajah”), which Davies J declined to follow in Snedden (aka Vasiljkovic) v Minister for Justice (Cth). On this question, the primary judge agreed with Davies J and specifically with the observations she made at [21] of her reasons. At [21] her Honour said that there were “clear textual and contextual” reasons for concluding that it was not the intention of the Parliament to deprive the Attorney-General of the power to make a surrender determination if the determination had not been made within the time provided in the section. Her Honour considered that the time stipulation conditioned only the time for performance of the power, not the existence of the power, and the mandatory requirement as to time could be enforced by an order in the nature of mandamus. On the second question, Mr Hala relied on the decision of Davies J, who found that Mr Snedden had been denied procedural fairness when he was not afforded the opportunity to comment on Croatia’s response to Mr Snedden’s submissions. But the primary judge held that Snedden (aka Vasiljkovic) v Minister for Justice (Cth) should not be taken as authority for the proposition that in all circumstances where an extradition country provides a response to the Minister’s invitation to comment on the submissions of an eligible person, the eligible person must be given the chance to comment on the response. His Honour said that “[t]he content of procedural fairness must be determined by the statutory background and the circumstances arising in a particular case” (at [49]). In the circumstances of this particular case, he held that there was no obligation to give Mr Hala that chance. He gave the following reasons. First, his Honour said that by the nature of his response to the Department’s invitation in its 21 September 2012 letter, Mr Hala had the opportunity to define the ambit of the issues he considered relevant to the Minister’s decision “and to provide such information and submissions as he saw fit, in support of those issues”.
Ratio Decidendi
Legal Principle Established
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