Marku v Minister for Justice

Case [2015] FCA 831

FEDERAL COURT OF AUSTRALIA

Marku v Minister for Justice [2015] FCA 831

Citation: Marku v Minister for Justice [2015] FCA 831
Parties: VALENTIN MARKU v MINISTER FOR JUSTICE
File number: VID 229 of 2015
Judge: KENNY J
Date of judgment: 13 August 2015
Catchwords:

EXTRADITION – application for judicial review under s 39B of the Judiciary Act 1903 (Cth) – whether mandamus should issue to compel Minister to determine under s 22(2) of the Extradition Act 1988 (Cth) not to surrender applicant to Republic of Albania and to direct a magistrate or eligible judge to order his release – no refusal or failure to perform duty under s 22(2) – mandamus not available to compel Minister to reach any particular state of satisfaction under s 22(3)(e) – application dismissed.

PRACTICE AND PROCEDURE – application to dispense with compliance with r 22.04 of the Federal Court Rules in relation to a Notice to Admit – application to set aside subpoena to give evidence and notices to produce – whether legitimate forensic purpose – whether reasonably likely to add to relevant evidence – subpoena set aside –notices to produce set aside (save for one paragraph).

Legislation:

Judiciary Act 1903 (Cth)
Extradition Act 1988 (Cth)
Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)

Constitution of the Commonwealth of Australia

Extradition Treaty between the United Kingdom of Great Britain and Northern Ireland and the Albanian Republic, 22 July 1926, Tirana, [1928] ATS 6.
Cases cited:

Republic of Croatia v Snedden [2010] HCA 14, 241 CLR 461
Santhirarajah v Attorney-General (Cth) [2012] FCA 940, 206 FCR 494
Marku v Republic of Albania [2013] FCAFC 51, 212 FCR 50
Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18
Trade Practice Commission v Arnotts Ltd (1989) 88 ALR 90
Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622, 195 FCR 43
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd [2011] FCA 181, 277 ALR 388
Seven Network Limited v News Limited (No 11) [2006] FCA 174
Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31
Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504, 37 ATR 432
Snedden (aka Vasiljkovic) v Minister for Justice [2014] FCAFC 156, 315 ALR 352
Rahardja v The Governor, Long Bay Gaol [2002] NSWSC 1253
Commissioner of State Revenue v Royal Insurance Australia Ltd [1994] HCA 61, 182 CLR 51
Port Phillip Scallops Pty Ltd v Minister for Agriculture [2015] VSC 179
Soliman v University of Technology, Sydney [2012] FCAFC 146, 207 FCR 277
Bertran v Vanstone [2000] FCA 359, 173 ALR 63
CIR v Royal Insurance [1994] HCA 61, 182 CLR 51
Hala v Minister for Justice [2015] FCAFC 13
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30, 50 CLR 228
Re Australian Bank Employees Union; ex parte…

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AGLC
Marku v Minister for Justice [2015] FCA 831
Case
[2015] FCA 831
Decision Date

CaseChat Overview and Summary

The case of Marku v Minister for Justice involves an application for judicial review of the Minister’s decision not to surrender the applicant, Valentin Marku, to Albania. Marku, who is an Australian citizen, is wanted by Albania for extradition on charges related to a 1994 conviction for intentional homicide and attempted homicide. The applicant argued that he could not be lawfully surrendered to Albania due to a prescription period under Albanian law that rendered his sentence statute-barred. The applicant sought a writ of mandamus to compel the Minister to refuse his surrender to Albania and to direct a magistrate or eligible judge to order his release. The central legal issues were whether there had been a refusal or failure by the Minister to perform his duty under s 22(2) of the Extradition Act 1988 (Cth) and whether mandamus was available to compel the Minister to reach a particular state of satisfaction under s 22(3)(e) of the Act. The Court found that the Minister had not refused or failed to perform his duty under s 22(2) as the decision-making process was ongoing, and the Department was actively seeking information to enable the Minister to make a determination. The Court held that mandamus was not available to compel the Minister to reach any particular state of satisfaction under s 22(3)(e). Consequently, the application for mandamus was dismissed. Additionally, the Court set aside a subpoena to give evidence and notices to produce, finding they did not serve a legitimate forensic purpose and were not reasonably likely to add to relevant evidence. The applicant was ordered to pay the respondent’s costs of the application, unless a party notified the Court in writing by a specified date, indicating opposition to this order as to costs.

Orders

Orders of the court

1. The application be dismissed.

2. Unless a party notifies the Court in writing by 4 pm on 19 August 2015, indicating opposition to this order as to costs, the applicant pay the respondent’s costs of the application, to be taxed in default of agreement.

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

Background

Background to the litigation

For the reasons stated below, I would dismiss this application for mandamus. BACKGROUND The background to this application can be stated briefly. On 12 September 2008, Albania made a request for the extradition of “Agostin Lleshaj (Lleshi) alias Valentin Marku”. The extradition process, which Albania initiated with this extradition request, has already been the subject of a number of applications attracting judicial consideration. See Marku v Republic of Albania [2012] FCA 804, 293 ALR 301; Marku v Republic of Albania (No 2) [2012] FCA 1182; Marku v Republic of Albania [2013] FCAFC 51, 212 FCR 50 (special leave refused: Marku v Republic of Albania [2013] HCA Trans 275); Marku v Minister for Home Affairs [2013] FCA 561, 212 FCR 471; and Marku v Minister for Home Affairs (No 2) [2013] FCA 1015, 216 FCR 315. In Marku v Republic of Albania [2013] FCAFC 51, 212 FCR at [3]-[14], a Full Court of this Court (Edmonds, Bromberg and Griffiths JJ) summarised the background facts relevantly as follows:On 16 December 1994, Agostin Lleshaj was convicted in the District Court of Mirdita in Albania of intentional homicide and attempted homicide. He was sentenced to life imprisonment. On 5 April 1995, his sentence was reduced on appeal to 25 years’ imprisonment.In March 1997, Agostin Lleshaj escaped from prison in Albania. At that time he had served three years and one month of his sentence. On 18 April 1998, the appellant entered Australia travelling on a false passport in the name of “Bujar Hasani”. He subsequently advised the relevant Commonwealth department that his name was “Valentin Marku”. In due course he was granted a protection visa and later became an Australian citizen.On 12 September 2008, the Ministry of Justice of the Republic of Albania made an extradition request for the extradition from Australia to Albania of “Agostin Lleshaj (Lleshi) alias Valentin Marku”. …On 8 January 2009, the Commonwealth Attorney-General’s Department (the Department) prepared a briefing memorandum to the Minister for Home Affairs advising him as to the matters he was required to consider in the exercise of his discretion [to issue a notice to a magistrate or eligible Federal Circuit Court Judge] under s 16 of the [Extradition] Act. …On 14 January 2009, the Minister for Home Affairs signed a notice under s 16 of the Act. The notice records that an extradition request had been received from Albania in relation to Agostin Lleshaj. ……On 3 March 2009, Albania made an ex parte application for the issue of a provisional arrest warrant under s 12 of the [Extradition] Act. …At the conclusion of the ex parte application made on 3 March 2009, Magistrate Reynolds issued a provisional arrest warrant under s 12 of the [Extradition] Act. …On 11 March 2009 [Mr Marku] was arrested and brought before a magistrate who remanded him in custody pursuant to s 15 of the [Extradition] Act. At that hearing [Mr Marku] disputed that he was either Agostin Lleshaj or Agustin Lleshi but admitted that he was Valentin Marku.On 3 May 2010 [a Deputy Chief Magistrate, now the Chief Magistrate, of Victoria] commenced hearing Albania’s application under s 19 of the [Extradition] Act to determine eligibility for surrender. As matters stood at that time:(a)the Minister had given notice under s 16(1) of the Act in relation to Agostin Lleshaj on 14 January 2009; and (b)on 11 March 2009, Valentin Marku (the physical person present in the Magistrates’ Court) had been remanded under s 15 of the Act based on the magistrate’s satisfaction under s 12 that Valentin Marku was an alias of Agostin Lleshaj.…On 28 May 2010, the Deputy Chief Magistrate issued a notice under s 19(9) of the [Extradition] Act determining that “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)” is eligible for surrender to the Republic of Albania and ordering that he be remanded in custody to await surrender or release under s 22(5) of the [Extradition] Act.

Evidence

Evidence Before The Court

The contest about the notice to admit, which the applicant served on the Minister, was resolved when counsel for the Minister stated that the Minister disputed the matters asserted in paragraphs [10], [14], [17]-[20] and [22]-[25] but that, for the purpose of the proceeding, the Minister admitted the other facts asserted in the notice to admit. In this circumstance, the Court ruled that there was sufficient compliance on the Minister’s part with rr 22.02 and 22.04 of the Rules and that, under r 1.34 of the Rules, it would dispense with further compliance with these rules. Subpoena to give evidence The applicant’s decision to seek the subpoena was prompted by an emailed letter dated 24 April 2015 addressed to Ms Willshire, a solicitor at DLA Piper (see [35] below) and signed by Mr Faris as Acting Assistant Secretary, ICCCA, which responded to a letter of 22 April 2015 from DLA Piper, signed by Ms Willshire and a partner in the firm. In her 22 April 2015 letter, which was addressed to the Assistant Secretary, ICCCA, Ms Willshire wrote:Dear Ms Blanpain, EXTRADITION REQUEST FROM THE REPUBLIC OF ALBANIAWe refer to our letter of 1 April 2015, attaching a copy of Decision No.7 dated 11 October 2002 in the Albanian language and an extract in English from the Albanian Jurisprudence Newsletter published by GAJUS, AJN Extra 2 of 2013, explaining this decision.In that letter, we said we were endeavouring to find a qualified translator, and would provide a translation of the decision as soon as we were able to do so.Please find attached two copies of Decision No. 7 dated 11 October 2002 translated in English, and a copy of the certificate from the translating authority. In the second copy of the decision, we have highlighted those parts of the majority's reasons which, applied to our client's case (even assuming he were Agostin Lleshaj), mean that he cannot be extradited, as the prescription period expired on 5 April 2015.Please confirm as a matter of urgency, and in any event by no later than 11 am, Friday 24 April 2015, that:(a)the Minister will make a determination under s 22 of the [Extradition] Act that our client is not to be surrendered to the Republic of Albania in relation to any of the qualifying extradition offences;(b)the Minister will direct a magistrate or an eligible Federal Circuit Court Judge to order the release of our client; and(c)the Minister will do (a) and (b) above by no later than 11 am, Friday 1 May 2015.Should we fail to receive confirmation in the above terms, we have instructions to immediately institute proceedings for mandamus to compel the Minister to make the determination that our client is not to be surrendered, and for habeas corpus. This letter, and our previous letter of 1 April 2015, will in that case be produced on the question of costs.Please acknowledge receipt of this letter. The emailed letter dated 24 April 2015 and signed by Mr Faris responded as follows:Dear Ms WillshireExtradition request from Albania - Agostin Lleshaj (also known as Valentin Marku)I refer to your letter of 22 Apri1 2015 attaching a translation of Albanian Decision No.7 (11 October 2002).Following receipt of your letter of 1 April 2015, to afford procedural fairness to the Republic of Albania, on 2 April 2015 and 8 April 2015 we sought any further views from Albanian authorities about the prescription period applicable in the case of Agostin Lleshaj. Copies of our correspondence are attached.We received a response from the Albanian Ministry of Justice on 2 April 2015, and a further response on 22 April 2015 from the Albanian General Prosecutor's Office (received by officers in the Department on 23 April 2015). Copies of those responses are also attached. The Ministry of Justice overnight foreshadowed that it intends to provide further information to us tonight, and we will provide that to you when it becomes available.In light of the information provided by Albanian authorities, we are not in a·position to provide the confirmation that you have sought in your letter of 22 April 2015 in respect of the Minister for Justice's determination. Instead, we consider it appropriate to offer your client a further opportunity to make representations for the Minister’s consideration.If, in light of the material contained in the correspondence from Albania, you would like to make additional representations on your client's behalf, please do so by close of business 23 May 2015. If we have not heard from you by 23 May 2015, this matter may be submitted to the Minister for Justice for determination on the basis of the information presently available to the Department. Should your client not wish to make any additional representations, please inform us as soon as practicable.…We note the Minister's obligation to make a determination as soon as reasonably practicable having regard to the circumstances. Should you advise us that your client does not want to make further representations we will prepare briefing putting all representations to the Minister to enable him to fulfil that obligation. Should your client make additional representations that we consider require us to further afford procedural fairness to Albania, we will advise you of that.The case officer for this matter in the Attorney-General's Department remains Veronica Blanpain who can be contacted on 02 6141 2531 or at veronicablanpain@ag.gov.au.(Original emphasis.)

Decision

Reasons for decision

In written submissions, the applicant postulated that the “simple facts” were that:(a)On 11 October 2002, the Albanian Supreme Court gave its unifying decision on article 68 of the Criminal Code. In its certified English translation, reference will be made to this decision as Decision No.7 of 2002.(b)From at least 12 September 2008, the Minister (by his Department) knew that article 68(a) of the Criminal Code provided for a 20-year prescription on the execution of the 25 years’ imprisonment sentence imposed on Agostin Lleshaj (Lleshaj), and that the critical date for calculation of the prescription was 5 April 1995, when that sentence became final. The Department knew, because it was so informed by the Republic of Albania’s Ministry of Justice (Ministry of Justice).(c)The person charged with the primary responsibility in respect of a brief to the Minister for the purpose of s 22 of the Act, Ms Veronica Blanpain, knew, by 18 December 2014 at the latest, the following:“According to the judgment handed down by the Republic of Albania Court of Cassation, Mr Lleshaj’s sentence became final on 5 April 1995. Accordingly, under Article 68 of the Criminal Code, Mr Lleshaj’s sentence cannot be enforced after 5 April 2015.”(d)By 2 April 2015 at the latest (the date of the Ministry of Justice’s response to a letter of the same date from the Department), Ms Blanpain knew full well the respective positions of the Applicant and the Ministry of Justice:i.the Applicant was relying on article 68 of the Criminal Code, the existence and effect of Decision No. 7 of 2002 as explained in the English extract from the Albanian Jurisprudence Newsletter, the expert opinion of Dr Rain Levoja, and further submissions from Counsel that analysed in some detail the proper construction of the Criminal Code and Criminal Procedure Code, also making very specific reference to important articles in those two Codes;ii.in response, the Ministry of Justice could only point to article 504/4 of the Criminal Procedure Code, but no judicial decision of an Albanian or foreign court in support of its position.Further, Ms Blanpain was in possession of an English translation of the entire Criminal Code and Criminal Procedure Code.(e)Although there was a flurry of activity by the Department after 1 April 2015, including “urgent” requests by it to the Ministry of Justice, in truth Ms Blanpain had had, by then, a period of some months to consider this issue. … It does not take long for an informed reader to realise that the Ministry of Justice’s response dated 24 April 2015 adds exactly “nil” to the information previously provided by it.(f)Finally … the Minister has carefully avoided giving any evidence as to when it was, precisely, that a bright spark within ICCCA decided that “it would be of great assistance to the Minister to obtain an independent expert opinion on the relevant operation of Albanian law”.(Footnotes omitted; original emphasis.) In the context of these asserted facts, Mr Marku’s primary submission was that since 5 April this year he could not be lawfully surrendered to Albania; and therefore the Minister had a duty (which arose on or after that date and no later than 29 April 2015) to refuse to surrender him to Albania. The applicant reasoned as follows:(a)Section 22(2) of the Extradition Act imposes a duty on the Minister to make a determination not to surrender the applicant to Albania where for the purposes of ss 22(3)(e)(i) and (iii) a limitation exists that has the effect that the extradition request must be refused.(b)Art 5 of the Treaty contains such a limitation in that it provides that “[t]he extradition shall not take place if, subsequently to … the conviction thereon, exemption from … punishment has been acquired by lapse of time, according to the laws of the State applying …”. (c)leaving aside the contested question as to whether Mr Marku was in fact Agostin Lleshaj, the limitation in Art 5 is applicable in this case by reason of Art 68 of the Criminal Code of the Republic of Albania (Albanian Criminal Code) which provides that a sentence of between 15 to 25 years is not to be executed if 20 years have elapsed from the day on which the sentence became final. The applicant’s sentence of 25 years imprisonment for murder and attempted murder in Albania became final on 5 April 1995. Accordingly, the enforcement of his sentence became statute-barred from 5 April 2015. (d)A decision of the Supreme Court of Albania dated 11 October 2002 (Decision No 7 of 2002) confirms this since it held that neither the Albanian Criminal Code nor the Criminal Procedure Code of the Republic of Albania (Albanian Criminal Procedure Code) provided for the extension or interruption of the period within which a sentence must be executed.(e)The contention of Albanian authorities that the applicant’s arrest in Australia following Albania’s extradition request amounts to an interruption of the prescription period in Art 68, based upon Art 504/4 of Albanian Criminal Procedure Code (which provides that detention abroad as a consequence of an extradition request is calculated as part of the overall detention term) is incorrect and should not be accepted in light of Decision No 7 of 2002 – and in any event Art 504/4 only applies to pre-trial detention.(f)For the purposes of s 22(3)(e)(i) of the Extradition Act, Art 5 of the Treaty is an absolute limitation in the circumstances that apply and, in consequence, surrender to Albania in respect of the qualifying extradition offences must now be refused.(g)Section 22(2) of the Extradition Act “mandated a course of action whereby, soon after 5 April 2015 and certainly well before 29 April 2015, the Minister was briefed by the Department on that sole issue …”. (h)The Department’s “‘independent expert on Albanian law’ idea [was] a litigation strategy devised after the Minister was served with the Applicant’s Originating [Application] dated 29 April 2015 for the sole purpose of attempting to resist the issue of the writ of mandamus”.

Ratio Decidendi

Legal Principle Established

The Minister contended that CSR v Royal Insurance [1994] HCA 61, 182 CLR 51 and Port Phillip Scallops v Minister for Agriculture [2015] VSC 179 should be distinguished from this case, noting, however, the latter case was directly contrary to the relief sought by the applicant here. CONSIDERATION As stated above, the applicant’s case was that there had been a failure or refusal to perform the duty to make a decision under s 22(2) because in the circumstances the only decision that could be made was to determine to refuse to surrender him to Albania. The applicant did not contend that, for some other reason, the Minister had failed to perform his duty to make a decision under s 22(2) of the Extradition Act “as soon as is reasonably practicable”: compare Snedden [2014] FCAFC 156, 315 ALR 352 at [107], [128], [131]; also Hala v Minister for Justice [2015] FCAFC 13, 145 ALD 552 at [36]. The applicant’s case was that the Minister’s duty under s 22(2) to refuse the applicant’s surrender to Albania arose no later than 29 April 2015 (when he sought to file these proceedings as foreshadowed in the letter of 22 April 2015). This was confirmed by counsel for the applicant at the hearing. For example, at page 23 of the transcript, the following appears:HER HONOUR: … You say as at 29 April, if not earlier, there was only one decision the Minister could make.MS DE FERRARI: Yes.HER HONOUR: And that’s the heart of your application.MS DE FERRARI: Yes. The applicant’s case fails in limine. A writ of mandamus issues only to command the performance of a public duty of a public nature, which should have but has not been performed: see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30, 50 CLR 228 at 242 per Rich, Dixon and McTiernan JJ. As the High Court (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ) said in Re Australian Bank Employees Union; ex parte Citicorp Australia Ltd [1989] HCA 41, 167 CLR 513 at 515, “[m]andamus will issue to compel the performance of a public duty when there has been a refusal or failure to perform that duty”: see also Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic) [1938] HCA 53, 60 CLR 741 at 749 per Latham CJ and Soliman v University of Technology, Sydney [2012] FCAFC 146, 207 FCR 277 at [52]. This is not such a case. Rather, this was a case in which the process of making a decision was being actively undertaken through-out the relevant period. The Department was clearly seeking to gather sufficient reliable information in order to prepare a briefing for the Minister, on the basis of which the Minister would make the decision that he was called upon to make under s 22(2) of the Extradition Act, having regard to s 22(3). The circumstances of the case, particularly the Department’s correspondence with the applicant’s legal representatives and with Albania, clearly showed that, although no determination under s 22(2) of the Extradition Act had yet been made, the decision-making process was in progress and that the Department was actively endeavouring to gather sufficient information to enable the Minister to make a determination under s 22(2), after considering the matters in s 22(3) as required, including, relevantly here, in s 22(3)(e).