Hala v Minister for Justice

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FEDERAL COURT OF AUSTRALIA

Hala v Minister for Justice [2014] FCA 457

Citation: Hala v Minister for Justice [2014] FCA 457
Parties: RICHARD HALA v MINISTER FOR JUSTICE
File number(s): WAD 299 of 2013
Judge(s): SIOPIS J
Date of judgment: 9 May 2014
Catchwords: EXTRADITION – decision to surrender the applicant to the Czech Republic in relation to an extradition offence – whether the Minister for Justice made the surrender decision “as soon as reasonably practicable, having regard to the circumstances” – procedural fairness – whether there was an obligation to provide the applicant with an opportunity to comment on the Czech Republic’s response to the applicant’s submissions to the department as to why he should not be extradited.
Legislation: Extradition Act 1988 (Cth) ss 19(9), 22, 22(2), 22(3)(a)-(e), 22(3)(f), 23
Cases cited: Snedden v Minister for Justice of the Commonwealth [2013] FCA 1202
Santhirarajah v Attorney-General (Cth) (2012) 206 FCR 494
Oates v Attorney-General (Cth) (2001) 181 ALR 559
Zentai v O’Connor (No 3) (2010) 187 FCR 495
Rivera v Minister for Justice and Customs (2007) 160 FCR 115
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582
Brock v Minister for Home Affairs [2011] FCAFC 167
Date of hearing: 9 December 2013
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 63
Counsel for the Applicant: Mr S Penglis with Mr A Golem
Solicitor for the Applicant: Herbert Smith Freehills
Counsel for the Respondent: Dr S Donaghue SC with Mr G Hill
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 299 of 2013
BETWEEN:

RICHARD HALA
Applicant
AND:

MINISTER FOR JUSTICE
Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

9 MAY 2014

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The applicant’s originating application filed on 5 August 2013 is dismissed.

2.The applicant is to pay the respondent’s costs.

3.The respondent, by himself or his servants, agents or officers, is precluded from taking any steps to extradite the applicant from Australia for the next 28 days, and in the event that an appeal against this judgment is lodged by the applicant within that period, until the further order of this Court.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 299 of 2013
BETWEEN:

RICHARD HALA
Applicant
AND:

MINISTER FOR JUSTICE
Respondent

JUDGE:

SIOPIS J

DATE:

9 MAY 2014

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. The applicant, Mr Richard Hala, was born in the Czech Republic and came to Australia from the Czech Republic in 1986.  The applicant became an Australian citizen in 1988, and has lived in Australia ever since.

  2. On 28 June 2010, the applicant was convicted in the Czech Republic in his absence of financial fraud to the…

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Details
Case
[2014] FCA 457
Decision Date

CaseChat Overview and Summary

In the case of Hala v Minister for Justice, the applicant, who had been determined to be an eligible person for extradition to the Czech Republic, challenged the decision of the Minister for Justice to surrender him. The applicant argued that the Minister had failed to make the surrender decision within a reasonable time, contrary to the Extradition Act, rendering the decision void. The applicant further argued that he was not given an opportunity to comment on the Czech Republic’s response to his submissions to the department, which was a breach of procedural fairness.

The court was required to decide whether the Minister had made the surrender decision within a reasonable time and whether the applicant was afforded procedural fairness by being given an opportunity to comment on the Czech Republic’s response. The applicant's submissions included concerns about undue delay, the fairness of a retrial, the applicant's health issues, and the conditions of Czech prisons. The court considered the timeline of events, including the period taken by the department to prepare the brief for the Minister and the time taken by the Minister to make the decision after receiving the brief.

The court found that the Minister had acted within a reasonable time and that there was no obligation to provide the applicant with an opportunity to comment on the Czech Republic’s response. The court held that the Minister’s decision was not void for delay and that procedural fairness was not breached by not allowing the applicant to comment on the response. Consequently, the court dismissed the applicant's originating application.

The court ordered that the applicant's application be dismissed, that the applicant pay the respondent’s costs, and that the respondent be precluded from taking any steps to extradite the applicant for the next 28 days, or until further order of the Court if an appeal is lodged within that period.

Orders

Orders of the court

1. The applicant’s originating application filed on 5 August 2013 is dismissed.

2. The applicant is to pay the respondent’s costs.

3. The respondent, by himself or his servants, agents or officers, is precluded from taking any steps to extradite the applicant from Australia for the next 28 days, and in the event that an appeal against this judgment is lodged by the applicant within that period, until the further order of this Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

During his oral submissions, counsel for the applicant advised that, whilst not abandoning the other three grounds of review, he would confine his oral argument to grounds one and five of the grounds of review. Senior counsel for the respondent advised that he would address in a like manner. I will deal with each of the five grounds of review.THE FIRST GROUND OF REVIEW: DELAY IN MAKING THE SURRENDER DECISION The first ground of review alleges a delay in making the surrender decision of such a magnitude as to render the surrender decision void. The ground of review is based upon s 22(2) of the Extradition Act which relevantly provides as follows: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. The applicant went on to contend the Minister of Justice committed a jurisdictional error by failing to make the determination “as soon as reasonably practicable, having regard to the circumstances”, with the consequence that the surrender decision was void. The factual background relied upon by the applicant in support of this ground of review was as follows:(a)As mentioned, on 20 September 2012, the Magistrate determined that the applicant was an “eligible person” for surrender.(b)On 21 September 2012, the Attorney-General’s Department requested that the applicant, by his pro bono legal representative, provide within 14 days any representations to the Minister as to why the applicant should not be surrendered to the Czech Republic.(c)On 28 September 2012, the applicant, by his legal representative, provided submissions to the department. Among the issues which the applicant’s legal representative raised in his submissions were the following matters:(i)there had been an undue delay in the bringing of charges against the applicant by the Czech Republic which was unexplained,(ii)that the applicant had not left the Czech Republic as a fugitive,(iii)it would be almost impossible for the applicant to have a fair retrial if he was surrendered to the Czech Republic,(iv)the case against the applicant was not being prosecuted in good faith,(v)the applicant had serious health issues,(vi)there were lengthy delays in the Czech Republic’s legal system which meant that the applicant would be held in custody for at least one year before his retrial,(vii)the prison conditions in the Czech Republic were overcrowded and there were poor medical facilities,(viii)the nature of the offence, whilst not trivial, was not such as should compel surrender.In the course of his submissions the applicant referred to a report of the Czech Helsinki Committee on prison conditions, as well as a number of international treaties, the Czech Republic Penal Code and legal authorities. The applicant’s letter also enclosed a medical report and character references.(d)By a letter dated 16 October 2012, an officer of the department requested a response from the Czech Republic in relation to the issues raised in the submissions made by the applicant. This letter summarised those aspects of the applicant’s submissions which related to the Czech Republic. The Czech Republic’s response was received by the department on 16 November 2012.(e)During the period 16 November 2012 to 5 July 2013, the department worked on the departmental brief to be provided to the Minister.(f)On 5 July 2013, the department provided the departmental brief to the Minister.(g)On 8 July 2013, the Minister made the surrender decision.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.