Lobban v Minister for Justice

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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

Winkler v Director of Public Prosecutions (1990) 25 FCR 79

Date of hearing: 10 May 2016
Registry: Western Australia
Division: General…
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Details
Case
[2016] FCAFC 109
Decision Date

CaseChat Overview and Summary

In the case of Lobban v Minister for Justice, the central issue before the court was whether the Minister for Justice had the authority to surrender Mr Lobban to the United States of America for extradition, and if so, whether the Minister’s decision-making process complied with the requirements set out in the Extradition Act 1988 (Cth) and the Extradition Treaty between Australia and the United States of America. The court examined the statutory framework governing extradition, focusing on the interplay between the Act and the Treaty, and the specific obligations Australia has under the Treaty. This included assessing whether the Minister was required to consider Mr Lobban’s Australian nationality in determining whether to surrender him and whether there was a jurisdictional error in the Minister's decision-making process.

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

Before considering the application for leave, it is convenient to first set out the history of Mr Lobban’s extradition proceedings, with particular emphasis on the provisions pursuant to which Mr Lobban was arrested, remanded in custody and committed to prison.BACKGROUND In Snedden v Minister for Justice and Another (2014) 230 FCR 82 (Snedden), Middleton and Wigney JJ said, of the scheme established by the Act (at [100]):… the Act creates a tightly structured scheme which presents the decision-maker at various stages of the extradition process with a binary choice. If the decision-maker decides one way, the extradition proceeds to the next stage. The Act specifically provides what is then to happen next. Typically that involves the person whose extradition is sought being remanded in custody (or on bail) to await the next decision in the process. If the decision-maker decides in the other way, the extradition process effectively comes to an end. The Act again specifically provides what is then to happen. Typically that involves a direction to release the person. There is generally no intermediate position and no uncertainty as to what is to happen next. It is well established that the statutory process culminating in the surrender of a person from Australia to an extradition country involves four stages. Mr Lobban has proceeded through the four stages of the extradition process as follows.The first stage On 13 July 2011 a magistrate issued a warrant for the arrest of Mr Lobban. The warrant was issued following a request made by the USA to Australia on 8 July 2011. The warrant was issued pursuant to s 12(1) of the Act. It provides: 12Extradition arrest warrants(1)Where:(a)an application is made, in the statutory form, on behalf of an extradition country to a magistrate or eligible Federal Circuit Court Judge for the issue of a warrant for the arrest of a person; and(b) the magistrate or Judge is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country;the magistrate or Judge shall issue a warrant, in the statutory form, for the arrest of the person The phrase “extraditable person” is defined in s 6 of the Act as follows:6Meaning of extraditable personWhere:(a)either:(i)a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or(ii)a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:(A)there is an intention to impose a sentence on the person as a consequence of the conviction; or(B)the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;(b)the offence or any of the offences is an extradition offence in relation to the country; and(c)the person is believed to be outside the country;the person is, for the purposes of this Act, an extraditable person in relation to the country.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Before concluding, it is necessary to briefly address the grounds stated in paragraphs 4 and 5 of the Supplementary Notice of Appeal. Those grounds should be rejected. They presuppose the conferral of power on the Minister under s 22(2) of the Act, but contend that the existence of Australia’s obligations arising under Article XIII conditions the manner in which the power is to be exercised. The approaches to statutory construction advanced in those grounds do not give adequate effect to Article XIII of the Treaty which, I have found, contemplates that the extradition proceedings against a person terminate all together and that the person be discharged from custody in circumstances where Article XIII(2) of the Treaty has been enlivened. The better approach is to read the definition of “eligible person” as being subject to the qualification I have identified, such that the jurisdictional fact preconditioning the existence of the power conferred by s 22 of the Act is absent in those circumstances.CONCLUSION I would allow the appeal.

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.