Lobban v Minister for Justice

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FEDERAL COURT OF AUSTRALIA

Lobban v Minister for Justice [2015] FCA 1361

Citation: Lobban v Minister for Justice [2015] FCA 1361
Parties: CHRISTOPHER LOBBAN v MINISTER FOR JUSTICE
File number: WAD 329 of 2014
Judge: MCKERRACHER J
Date of judgment: 3 December 2015
Catchwords:

EXTRADITION – review of decision to surrender under s 22 of the Extradition Act 1988 (Cth) – whether Minister applied the wrong test under s 22(3)(e) and s 22(3)(f) of the Act – whether the Minister should have refused to surrender the applicant under s 22(3)(e) or exercised the discretion under s 22(3)(f) of the Act because of the circumstance that if convicted of the offences in the requesting State the applicant will be at risk of being sentenced for a considerably longer time than could be reasonably anticipated if convicted for corresponding offences in Australia or Western Australia.

ADMINISTRATIVE LAW – whether the Minister’s decision to surrender under s 22 of the Extradition Act 1988 (Cth) was made as a result of an inflexible and ultra vires policy – whether the Minister’s decision to surrender under s 22 of the Extradition Act 1988 (Cth) was unreasonable – whether the Minister’s decision was unreasonable because the applicant could be prosecuted in Australia – whether the Minister’s decision was unreasonable because the sentence which may follow conviction of the extradition offences in the requesting State is substantially more severe than that which might be imposed if the applicant were convicted in Western Australia – whether the Minister’s decision is unreasonable because of the gravity of the effect of surrender on the applicant’s common law and treaty based rights – whether the Minister’s decision is unreasonable because the applicant has spent as much time in administrative custody awaiting extradition as he would be likely to face if imprisoned following conviction in Western Australia - whether the Minister’s decision to surrender under s 22 of the Extradition Act 1988 (Cth) constituted a disproportionate exercise of the power conferred by s 22 of the Act

Legislation:

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, [1989] ATS 21 (entered into force 26 June 1987)
Convention for the Protection of Human Rights and Fundamental Freedoms, open for signature 4 November 1950, 213 UNTS 221, ETS 5 (entered into force 3 September 1953) (as amended)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Extradition Act 1988 (Cth) ss 3, 11, 12, 19, 22, 23, 45
Extradition (United States of America) Regulations (Cth) (undated, compilation prepared on 22 November 2000) reg 4, Sch 1, Sch 2
Judiciary Act 1903 (Cth) s 39B
Cases cited: Andary v Minister for Immigration & Multicultural Affairs [2003] FCA 211
Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223
Babar Ahmed v United Kingdom [2012] ECHR 609
Bruce v Cole (1998) 45 NSWLR 163
Commonwealth Minister…
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Details
Case
[2015] FCA 1361
Decision Date

CaseChat Overview and Summary

Lobban v Minister for Justice is a case in which the applicant, Mr Lobban, challenged the Minister for Justice's decision to surrender him to the United States for prosecution on charges of aggravated child abuse. The primary legal issue before the court was whether the Minister had applied the correct legal test under the Extradition Act 1988 (Cth) when deciding to surrender the applicant. The applicant argued that the Minister should have exercised a discretion under the Act to refuse his surrender due to the significantly harsher penalties he faced if convicted in the United States compared to Australia. The court examined whether the Minister's decision was unreasonable, considering factors such as the severity of potential penalties, the applicant's right to be prosecuted in Australia, and the disproportionate impact of extradition on the applicant.

The court considered whether the Minister's decision to surrender was based on an inflexible policy or was otherwise unreasonable. The applicant argued that the Minister should have exercised a discretion to refuse extradition due to the excessively severe penalties he would face in the United States. The court held that the grounds for review were narrowly defined and that the court could not substitute its own decision for the Minister's. The court found that the Minister had correctly applied the law and that the decision to surrender was not unreasonable. The court dismissed the application and ordered that the applicant pay the costs of the respondent.

Orders

Orders of the court

1. The application be dismissed.

2. The Applicant pay the costs of the Respondent, to be taxed if not agreed.

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

Background

Background to the litigation

Central to all aspects is the contention for Mr Lobban, which I assume for the purpose of my consideration to be true, that the potential penalties to which he will be exposed on extradition are considerably more severe than he would be likely to be subjected to in Australia. BACKGROUND United States authorities allege that at a time prior to November 2008, Mr Lobban ‘met’ a Ms Robin Pagoria on-line through a website known as In essence, it is alleged against Mr Lobban that he advised Ms Pagoria how to ‘discipline’ her children, two girls who are now described as ‘SP’ and ‘CP’, then aged 14 and 15 years respectively. Ms Pagoria was a resident of Polk County, Florida, United States. Ms Pagoria was arrested on 25 May 2011 and remanded into custody. Prior to her arrest Ms Pagoria had worked within the prison system in Polk County as a detention deputy under Sheriff Grady Judd. After a plea bargain, Ms Pagoria was sentenced to 20 years imprisonment, as well as ordered to serve 20 years of sexual offender probation, once released from detention. She pleaded guilty in Florida to two counts of aggravated child abuse, two counts of lewd or lascivious battery and two counts of using a child in a sexual performance. As part of a plea bargain she agreed to give evidence against Mr Lobban. Shortly following this sentencing, on 29 June 2011, a warrant for Mr Lobban’s arrest was issued in Florida, United States. The counts on which Mr Lobban is charged under the relevant Florida criminal statute are framed in this manner (extradition offences):IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUITIN AND FOR POLK COUNTY, STATE OF FLORIDA On 16 July 2011, Mr Lobban was arrested pursuant to a warrant issued under s 12 of the Act. Six days later, he was remanded in custody at Hakea Prison in Western Australia and has been in extradition detention since that time. On 30 April 2012, a Magistrate found that he was eligible for surrender to the United States in relation to extradition offences and committed Mr Lobban to prison pursuant to s 19 of the Act to await surrender. Almost 18 months later, on 16 October 2014, the Attorney-General’s Department gave a Brief to the Minister in relation to his determination under s 22 of the Act. On 29 October 2014, the Minister determined pursuant to s 22 of the Act that Mr Lobban be surrendered to the United States. The Minister then issued a warrant under s 23 of the Act on the same day for Mr Lobban’s surrender. On 6 November 2014, Mr Lobban filed an originating application for relief under s 39B of the Judiciary Act 1903 (Cth), accompanied by a statement of claim. Shortly after this, Orders were made by consent for disclosure of the Brief, including attachments. With some redaction, the full Brief to the Minister comprising some 485 pages was supplied. In the interim between incarceration and briefing the Minister, there had been a deal of activity. Several submissions were made on Mr Lobban’s behalf. On 14 May 2012, submissions were made by Mr Lobban’s former lawyers to the former Attorney-General, the Hon Nicola Roxon MP. On 14 June 2012, the Department wrote to its counterpart in the United States requesting a response to various matters which arose from Mr Lobban’s 14 May 2012 submissions. On 3 September 2012, the Department wrote to its counterpart in the United States, again, requesting a response to matters arising from the 14 May 2012 submissions made for Mr Lobban. In late September 2012, there was a response to the request contained in the Department’s letter of 14 June 2012. On 16 November 2012, the United States responded to the request contained in the Department’s letter of 3 September 2012.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Therefore, the fourth and final ground cannot succeed. CONCLUSION The grounds upon which this and many ministerial decisions may be reviewed, as Mr Lobban’s arguments acknowledge, are quite limited. In particular, it is not open to the Court to simply substitute what it considers might be the preferable decision for a decision which might be considered to be harsh. While Mr Lobban has pursued available options, at least through the judicial review process at first instance, those options do not entitle him to the relief he seeks through the courts. As none of the grounds for Mr Lobban can be made out, the application must be dismissed. The following orders are made:1.The application be dismissed.2.The Applicant pay the costs of the Respondent, to be taxed if not agreed.

Ratio Decidendi

Legal Principle Established

Against that background, it is necessary to consider the arguments advanced in support of the grounds of challenge. GROUND 1: FAILURE TO TAKE INTO ACCOUNT A RELEVANT CONSIDERATION – ART V OF THE TREATY The effect of s 11(1) and (1C) of the Act, together with reg 4 of the US Regulations, is to make the operation of the Act in relation to the United States subject to the Treaty. The Act therefore applies subject to the necessary qualification or exception found in Art V of the Treaty. The point in time when the Act gives effect to that necessary qualification or exception is when the Minister comes under the duty in s 22 of the Act, pursuant to s 19(2)(c) of the Act, with the mechanism for doing so provided by s 22(3)(e). I have already drawn attention to the content of the Brief concerning Art V. Mr Lobban submits that the Brief to the Minister on Art V set out in the first sentence of the Brief at [31] (set out above at [22]) would have been correct in respect of the original 1976 Treaty. However, the Protocol effected a significant change to Art V. Article V of the Treaty is required to be interpreted in accordance with the principles of the 1969 Vienna Convention of the Law of Treaties. The most significant principles for present purposes are those in Art 31, as discussed in Minister for Home Affairs (Cth) v Zentai (2012) 246 CLR 213 (at [18]-[19]). The point made for Mr Lobban is that when the State parties agreed in 1990 to amend Art V by replacing paragraph (2) with a new paragraph, bearing in mind that the purpose of the Treaty is for extradition, they agreed to condition the (discretionary) right of the requested party to refuse surrender of one of its nationals with a duty to prosecute that national if so requested by the requesting State. Article V of the Treaty, according to Mr Lobban, gives effect to a form of an ‘extradite or prosecute’ obligation. This obligation is particularly apt at present, Mr Lobban submits. Many offences now have a multi-jurisdictional character or may be proscribed under national laws that give effect to obligations assumed under widely ratified treaties. Offences and treaties pertaining to terrorism, drug smuggling and money laundering are examples. Many bilateral and multi-lateral cooperation treaties have been entered into. Mr Lobban argues that the notion that may have underpinned the old theory of extradition law and practice, namely, territoriality of the offence and the greater interest of the requesting State in prosecuting it, no longer hold true. Rather, for present purposes, it is argued that the Brief to the Minister incorrectly advised him as to the entirety of Article V and its proper construction. He submits that had the Brief to the Minister correctly advised him, he would have known he had the discretion under the Treaty not to surrender Mr Lobban. Although in this case the United States could have required that Mr Lobban be prosecuted in Australia and Australia would have come under an obligation to do so (in respect of which see Art V of the Treaty, which is to be interpreted in accordance with the Vienna Convention, and particularly Art 26 in this instance), the object and purpose of the Treaty and the Act would not have been frustrated. On the facts of this case, Mr Lobban contends that the option to prosecute in Australia would have been a powerful consideration in favour of the Minister exercising the Treaty discretion in that way. It is submitted that, although the Minister purported to give consideration to Art V of the Treaty, in fact, he failed to do so. It was thus submitted that there was a constructive failure to exercise the duty in s 22(2) of the Act, read with subs (3)(e).