Marku v Republic of Albania

In the case of Marku v Republic of Albania, the applicant, Valentin Marku, sought to challenge the decision of the magistrate to order his extradition to Albania. Marku claimed that he was not the person convicted in Albania, Agostin Lleshaj, and that he had been the victim of mistaken identity. The court was required to determine whether the magistrate had the power to decide the identity dispute under section 19 of the Extradition Act 1988 (Cth) and whether identity was a jurisdictional fact. The court also had to consider the role of the magistrate in the extradition process and whether the structure of the Act supported the applicant's construction of the relevant provisions.

The court held that the magistrate did not have the power to determine the identity dispute under section 19 of the Act, as this was a matter to be considered in the exercise of the power rather than a jurisdictional fact. The court found that the reasoning in Director of Public Prosecutions (Cth) v Kainhofer precluded a section 19 magistrate from determining the identity question, as the magistrate must assume that the person on remand is the extraditable person. The court also held that identity was not a jurisdictional fact, but rather a matter to be considered in the exercise of the power. The court concluded that the structure of the Act supported its construction of the relevant provisions, as the identity dispute was best heard on the merits under the Act rather than by the magistrate.

The final orders of the court were to adjourn the further hearing of the proceeding to 13 August 2012. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.