FEDERAL COURT OF AUSTRALIA
Lobban v Minister for Justice [2016] FCAFC 109
Appeal from: Lobban v Minister for Justice [2015] FCA 1361 File number(s): WAD 753 of 2015 Judge(s): SIOPIS, BARKER AND CHARLESWORTH JJ Date of judgment: 22 August 2016 Catchwords: EXTRADITION – surrender determination made for extradition – surrender determination made under s 22(2) of the Extradition Act 1988 (Cth) – construction of Articles V and XIII of Treaty on Extradition between Australia and the United States of America of 14 May 1974, as amended by the Protocol done at Seoul on 4 September 1990 – whether Australian nationality of surrendered person requires positive satisfaction by the decision-maker that it is proper to surrender that person – imposition of a time limit for the requesting State to respond to request for further information – the request for further information made whilst the Minister was considering whether to make a surrender determination under s 22(2) of the Extradition Act – whether late response from requesting State to request for further information requires the eligible person to be discharged from custody – whether jurisdictional error by the Minister in making surrender determination after late response from the requesting State to the request for further information. Legislation: Acts Interpretation Act 1901 (Cth), s 19
Extradition (Foreign States) Act 1966 (Cth), ss 15, 16, 17
Extradition (United States of America) Regulations 1988 (Cth), reg 4
Extradition Act 1988 (Cth), ss 3, 5, 6, 11, 12, 15, 16, 16(1), 17, 17(2), 19, 19A, 22, 22(2), 22(3)(e), 22(3)(f) 23, 26
Extradition Amendment Act 1990 (Cth), s 4
Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth), ss 13, 14, 189
Treaty on Extradition between Australia and the United States of America of 14 May 1974, as amended by the Protocol done at Seoul on 4 September 1990, Arts V, X, XI, XII, XIII
Cases cited: Snedden v Minister for Justice (2014) 230 FCR 82
Coco v Commissioner of Taxation (No 2) (1993) 43 FCR 140
Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543, [2002] FCA 480, [2002] FCAFC 105
Kioa v West (1985) 159 CLR 550
Kruger v Commonwealth (1997) 190 CLR 1
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Justice v Adamas (2013) 253 CLR 43
O’Connor v Adamas (2013) 210 FCR 364
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8, [2015] HCA 50
Snedden v Minister for Justice (2014) 230 FCR 82
SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, [1985] HCA 28
VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158
Date of hearing: 10 May 2016 Registry: Western Australia Division: General…
Keep reading for free
Create a free CaseChat account to read Lobban v Minister for Justice 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2016] FCAFC 109
- Decision Date
CaseChat Overview and Summary
The court determined that the Minister’s power to surrender an Australian national to another country was not contingent upon reaching a state of positive satisfaction that it was proper to do so, despite the individual’s nationality. The court found that the Extradition Act and the Treaty do not require the Minister to consider the nationality of the extradited person as a standalone factor. The court further held that the Minister did not make a jurisdictional error by making the surrender determination after the United States responded late to a request for further information. The court concluded that the Extradition Act provides a clear statutory process for extradition, and the Treaty does not impose any additional obligations on the Minister in this regard. The Minister’s decision to surrender Mr Lobban was therefore lawful and within the scope of the powers conferred by the Act.
In light of the above, the court dismissed the appeal and ordered that Mr Lobban be surrendered to the United States. Additionally, the appellant was ordered to pay the respondent's costs. This decision underscores the importance of adhering to the statutory extradition process and highlights the limited role of nationality in the extradition decision-making process under the Extradition Act and the Treaty.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant is to 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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In either case, it was submitted that the Minister’s power to surrender Mr Lobban to the USA was conditional upon him first reaching a state of positive satisfaction that he considered it was proper to surrender Mr Lobban to the USA, notwithstanding Mr Lobban’s Australian nationality. It was further submitted that the Minister did not give Mr Lobban’s nationality the “standalone importance” that s 22(3)(e) was said to require.Consideration Section 22(3)(e) of the Act does not, on its terms, directly invoke the terms of the Treaty. It is a provision that is only enlivened in circumstances “where, because of section 11, the Act applies in relation to” the USA subject to a limitation, condition, qualification or exception (my emphasis). Further, s 22(3)(e) only applies where the limitation, condition, qualification and exception to which the application of the Act is subject is one that has either the effect described in s 22(3)(e)(i) or the effect described in s 22(3)(e)(ii). The words “because of s 11” are to be understood as including a reference to valid regulations empowered under s 11(1)(a), such as Regulation 4. Any analysis of the meaning and effect of s 22(3)(e) of the Act must therefore have, as its starting point, the proper construction of s 11 and Regulation 4. The words “subject ... to the Treaty” in Regulation 4 are the same as those envisaged and permitted by s 11(1C) of the Act. Section 11(1C) was inserted by s 4 of the Extradition Amendment Act 1990 (Cth) (Amending Act). It requires that the phrase “subject to the Treaty” (as used in Regulation 4) be taken to mean (in the context of the present case) “this Act applies in relation to the USA subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the [Treaty]”. In other words, a regulation made in the broad terms permitted by s 11(1C) is to be read as one incorporating the same specific form of words expressed in s 11(1)(a). So much is clear from the text and context of s 11(1C) itself. The words “as are necessary” in s 11(1)(a) are words of limitation. They confine the circumstances in which, and the extent to which, the application of the Act is to be modified so as to give effect to Australia’s obligations under the Treaty. There will be circumstances in which the Act (whether expressly or by necessary intendment), gives adequate effect to the Treaty by, for example, imposing limitations, conditions, exceptions or qualifications that are co-extensive with it. In that circumstance the limitations etcetera would apply by force of the Act itself: no modification of its terms would be necessary within the meaning of s 11 and Regulation 4. It is only in circumstances where the Act does not give adequate effect to the Treaty that Regulation 4 has any work to do. It is against that background that I now compare Australia’s obligations under Article V of the Treaty with the text, operation and effect of the Act insofar as it applies to Australian nationals in respect of whom a request for extradition is made by the USA.