Marku v The Republic of Albania and Anor; Marku v The Republic of Albania

[2013] HCATrans 275

[2013] HCATrans 275

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M69 of 2013

B e t w e e n -

VALENTIN MARKU

Applicant

and

THE REPUBLIC OF ALBANIA

First Respondent

DEPUTY CHIEF MAGISTRATE OF VICTORIA

Second Respondent

Office of the Registry
  Melbourne  No M70 of 2013

B e t w e e n -

VALENIN MARKU

Applicant

and

THE REPUBLIC OF ALBANIA

Respondent

Office of the Registry
  Melbourne  No M71 of 2013

B e t w e e n -

VALENTIN MARKU

Applicant

and

THE REPUBLIC OF ALBANIA

First Respondent

DEPUTY CHIEF MAGISTRATE OF VICTORIA

Second Respondent

Applications for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 NOVEMBER 2013, AT 2.22 PM

Copyright in the High Court of Australia

____________________

MS L.G. DE FERRARI:   If the Court pleases, I appear with MS K. ARGIROPOULOS for the applicant.  (instructed by DLA Piper Australia)

MR S.B. LLOYD, SC:   If it please the Court, I appear for the Republic of Albania in each of the matters.  (instructed by Ashurst Australia)

KIEFEL J:   Yes.

MS DE FERRARI:   Your Honours, this Court did not in Kainhofer address any issue of identity that is plain.  What this Court decided in Kainhofer - that is all of the five Justices - is that the section 19 magistrate is neither required nor authorised to determine the issue of whether a person is an extraditable person, that is, the section 19 magistrate cannot review the state of satisfaction reached by the Attorney‑General under section 16 and by the section 12 magistrate on the issue of extraditable person and only on that issue.

KIEFEL J:   But does not that question about whether the person is an extraditable person which arises under either section 12 or on the Attorney‑General’s consideration of whether the person is an extraditable person - is that not where the question of identity would arise?

MS DE FERRARI:   No, your Honour.  Perhaps it is convenient if I start by the definition of “extraditable person” in section 6 of the Act.  Your Honours should have the Act as part of a joint bundle of authorities.  Section 6 is at page 78.  I trust the Court’s book is paginated.  Thus, the meaning of “extraditable person” – now, I will just go through what is relevant in this case:

Where:

(a)      either:

. . . 

(ii)     a person has been convicted of an offence –

Now, the person there is Lleshaj.  Then one turns the page, (B):

the whole or part of a sentence imposed on the person as a consequence of the conviction remains to be served -

The person there is Lleshaj.  Now, (b) is not in issue in this case.  One then goes to paragraph (c):

the person is believed to be outside ‑

of Australia.  The person there, again, is Lleshaj - Lleshaj and only Lleshaj.  Now, if one then goes ‑ ‑ ‑

KIEFEL J:   But the question of identity is involved in the term “the person”, is it not?

MS DE FERRARI:   No, your Honour.

KIEFEL J:   If the person who is under section 12 the subject of a warrant is not the person sought to be extradited as a term - as a matter of identity, that is a matter which the section 12 magistrate could, if the magistrate was alert to the issue, deal with in determining whether the warrant issues.  Likewise the Attorney‑General could determine the question of identity if it were raised.

MS DE FERRARI:   No, on the second point, your Honour, and if I may, I will start with section 16.  As your Honour knows, in this case section 16 was actually a first step under the Act in terms of initiating the proceedings.  In terms of section 16, your Honour, the answer is undoubtedly no.  I say that, your Honour, because that precise issue about the issue identity being sought to be raised in front of the Attorney‑General, in this case, the Minister, at the section 16 stage was ventilated in section 39B proceedings.

Your Honours will know there is a reference to the Full Court proceedings being extant on that issue.  That precise issue was sought to be raised in those section 39B proceedings and Justice Gordon of the Federal Court in a decision about a month ago said no, absolutely not, that issue does not arise at the section 16 stage.  There is no issue of identity at the section 16 stage.  Why did her Honour say so?  Because, your Honour, if your Honour goes to section 16, that is at page 84, that starts with subsection (1):

Where the Attorney‑General receives an extradition request from an extradition country in relation to a person –

Now, the Minister submitted to Justice Gordon and Justice Gordon accepted that a person there was Lleshaj and only Lleshaj and had nothing to do with the fact that the extradition request also referred to the alias.  So one has “a person” and it is Lleshaj.  Then one goes to subsection (2) to see when the notice can be given:

The Attorney‑General shall not give the notice:

(a)unless the Attorney‑General is of the opinion:

(i)that the person –

that is Lleshaj and just Lleshaj –

is an extraditable person in relation to the extradition country –

Now, what her Honour said, that goes back to section 6 and a definition of “extraditable person”, is that the only issue that the Attorney‑General has to look at in the context of the compass of the expression “extraditable person” is whether ‑ is forming the belief that the person, Lleshaj, was outside of Albania.  That is all that the Attorney‑General had to do.  That is all that is protected in terms of interpretation by Attorney‑General of the issue of extraditable person. 

Necessarily, your Honours, that is all that is protected in terms of the determination of this issue “extraditable person” by the section 12 magistrate.  It is the exact same issue.  All he had to determine, the section 12 magistrate, was that Lleshaj reach a state of satisfaction that Lleshaj was believed to be outside of Albania.  That is all.  No issue with identity whatsoever.  Now, clearly the section 12 magistrate ‑ ‑ ‑

KIEFEL J:   Do we have the judgment of her Honour in relation to the section 39B?

MS DE FERRARI:   Your Honours, it is my mistake that it was not included in the Court book.

KIEFEL J:   No application for leave to appeal was sought?

MS DE FERRARI:   There is no appeal put, no application.

KIEFEL J:   So this is the odd position that the effect of what you are saying is that the two judgments in this matter would deny the question of the identity of the person sought to be extradited being determined either on review under the Extradition Act or under section 39B.

MS DE FERRARI:   Yes.

KIEFEL J: But the limitation on this matter having been brought only from the appeal relating to the section 19 decision is that if it arises under sections 12 or 16 then this Court could not pronounce upon it.

MS DE FERRARI: Well, your Honour, the limitation really is a limitation about the proper construction of the Act. Now, section 19 ‑ ‑ ‑

KIEFEL J: Yes, but this Court could not give an advisory opinion. If it is determined that it does not arise under section 19, it would not be within the matter that this Court is seized with to pronounce upon the construction of sections 12 or 16.

MS DE FERRARI:   Your Honours would not have to do that, your Honour.  Your Honours would just have to look at what is the definition of “extraditable offence” because all that – sorry, I withdraw that.  What is the definition of “extraditable person” because all that the High Court said, all this Court said in Kainhofer – and I can take your Honours to the passages where it said that – is that that evaluation of just that question, extraditable person, is what is not permitted by the section 19 magistrate to revisit.

Now, necessarily, without this Court having to take on appeal from his Honour Justice Gordon, the issue is, well, precisely what is unreviewable by the section 19 magistrate in terms of extraditable person? The only thing that is reviewable, your Honours, is the fact that the Minister reached a state of satisfaction that Lleshaj was believed to be outside of Albania, same for the section 12 magistrate. That is just on any construction of section 6 of the Act, your Honours.

If it is convenient, I can take your Honour to where this Court said that in Kainhofer.  In terms of the joint reasons, relevantly it starts at page 538 of the judgment, which is page 11 of the book of authorities, and your Honours will see in the last paragraph.  That, obviously, arose in terms of the question of an accused, whether that can be reviewed:

The question whether a person is accused of having committed an offence . . . is addressed by a magistrate under s 12(1) and by the Attorney‑General under s 16 in considering whether the person is an extraditable person.

So the only issue is extraditable person –

The state of mind which is formed on that issue by those officers is not reviewable by a s 19 magistrate.

KIEFEL J:   The Court goes on:

Of course, prohibition or mandamus may go to an officer –

in relation to those.

MS DE FERRARI:   Yes, but it does not go, obviously, in terms of section 16 to the failure to consider identity issues; clearly, it does not.

KIEFEL J:   Just let me understand your argument better.  You are saying that there must be a point under the Extradition Act where the question of identity arises?

MS DE FERRARI:   Yes.

KIEFEL J:   The question is where?

MS DE FERRARI:   Yes.

KIEFEL J: If you are not right about it arising under section 19, which is what we are concerned with here, this Court cannot resolve any other questions because the questions as to whether or not the issue arose at the earlier points under sections 16 or 12 are not before the Court.

MS DE FERRARI: I understand that, your Honour, but my point is it does arise at section 19, as an issue of construction purely of section 19, because all that the magistrate under section 19 is not permitted to review is that limited state of satisfaction about extraditable person; that is all that he is not permitted to review. Within that limited state of satisfaction about extraditable person there arises no issue of identity.

BELL J: Ms De Ferrari, I think it might be convenient to look at what it is that the statute requires the magistrate to do under section 19 because that may be where your difficulty lies.

MS DE FERRARI:   Yes, your Honour.

BELL J:   The magistrate has to see whether the person is a person on remand under section 15.  Is that right?

MS DE FERRARI:   Yes.

BELL J:   Now, the issue of identity, as it were, that you wish to agitate is not raised by that question, is it?

MS DE FERRARI:   Well, your Honour, it is not by that, it is raised by the combination.  In subsection (1) there is the first issue, which is the fact that the person on remand – well, the physical person on remand is, undoubtedly, the applicant and he is asserting strenuously that he is Marku.  Now, I know he came to be there by reason of a section 12 warrant and I need to go back to what was done at the section 12 stage, but the person on remand unquestionably, whether or not he is Lleshaj, but unquestionably is also the Australian citizen, Marku.

BELL J:   But what one is looking at, and if one reads Kainhofer one might think the magistrate’s function is a limited one.  It is the limited statutory function which requires the magistrate to consider a number of matters that on a view do not raise the identity issue that you suggest must be able to be determined somewhere within this Act.

MS DE FERRARI:   With respect, your Honours, no, because as the joint reasons in Kainhofer themselves recognise, one starts with subsection (1) of section 19 and all of those matters (a) to (d) are preconditions to the jurisdiction of the section 19 magistrate to go on and determine whether a person is eligible for surrender. So one has the magistrate at a very minimum and that is the issue that arises from the amendment, has to be satisfied that there is a person on remand and that the Attorney‑General under paragraph (b) – and I should, you know, indicate where the words end because that is really the test – under paragraph (b):

the Attorney‑General has given a notice under subsection 16(1) –

The issue for the magistrate at that stage is has the Attorney‑General given a notice under subsection 16(1) in relation to the person on remand? That is the first issue that arises. That, necessarily, is an issue of jurisdiction which a section 19 magistrate must confront. Kainhofer said that ‑ ‑ ‑

BELL J: Yes, so if the section 19 magistrate determines that your client is on remand under section 15, as undoubtedly your client is, and that the Attorney‑General has given a notice under section 16(1), as undoubtedly the Attorney‑General has ‑ ‑ ‑

MS DE FERRARI:   The notice is to Lleshaj, and only Lleshaj.  The Minister admitted in front of her Honour Justice Gordon that the Minister did not have the slightest information before him that identified Lleshaj and Marku, did not turn his attention at all to the issue of whether Lleshaj and Marku were the same person, did not have to.  All he had to was form the belief that Lleshaj was outside of Albania.  Now, that is exactly the same limited belief that the section 12 magistrate has to form.

KIEFEL J:   Ms De Ferrari, could I ask you to go back to the judgment that you have handed up, which I have not had really a chance to read properly, of Justice Gordon which you said dealt with the section 39B question?

MS DE FERRARI:   Yes.

KIEFEL J:   Could you tell me where her Honour says that section 39B cannot be applied to the section 16 or section 12 ‑ ‑ ‑

MS DE FERRARI:   On the issue of identity, your Honour.

KIEFEL J:   Yes.

MS DE FERRARI:   Yes, your Honour.

KIEFEL J:   Her Honour at page 15 and following seems to say challenge to identity is not precluded, at least in relation to section 12.

MS DE FERRARI:   By habeas.

KIEFEL J:   No, the avenue arises under section 12 itself; we will leave habeas corpus out of the picture.

MS DE FERRARI:   Yes.

KIEFEL J:   Where does her Honour say section 39B cannot be applied?

MS DE FERRARI:   In respect of section 12, your Honour?

KIEFEL J:   Yes, or 16.

MS DE FERRARI:   In respect of section 16, your Honours, you will see that from paragraph 36.  Her Honour concludes that:

The Minister addressed the correct question ‑ whether Lleshaj was believed to be outside Albania.

KIEFEL J:   What was the application her Honour was dealing with?

MS DE FERRARI:   The application was jurisdictional error by the Minister for failing to deal ‑ ‑ ‑

KIEFEL J:   By the Minister under section 16.

MS DE FERRARI:   ‑ ‑ ‑ for failing to deal with the issue of identity.  Now, before her Honour it was put the issue of identity was squarely alive because the extradition request said we want Agostin Lleshaj, also known as Valentin Marku, and quite apart from that extensive material clearly showed that there was a real issue about whether Marku was Lleshaj as far as the Department was concerned at all stages in considering the extradition request.  They kept asking for more identification information, your Honours.  So in terms of section 12, your Honours, what happens in this case, if your Honours go to section 12 of the Act ‑ ‑ ‑

KIEFEL J:   I am sorry, her Honour did not, however, exclude the prospect of section 39B applying to section 12.

MS DE FERRARI:   No, your Honours, but can I ‑ ‑ ‑

KIEFEL J:   But did not deal with it because that was not part of the application before her.

MS DE FERRARI:   No, your Honour, but can I – that is why I wanted to go to section 12, because section 12 and what happens in this case is basically two steps.  What happened in this case, what the section 12 magistrate did was two steps.  Section 12 is at page 80.  Now, it starts by:

Where:

(a)       an application is made . . . for the issue of a warrant for the arrest of a person ‑

Now, in this case – and the warrant is, your Honours, in the application book – the application for the warrant is in the application book at page 151 and it is for the arrest of Agostin Lleshaj.  However, the form also says, “also known” by these names.  But, undoubtedly, the application for the provisional arrest warrant was for the arrest of Agostin Lleshaj.  So one has the exact same issue as the Attorney‑General has under section 16:

(b)       the magistrate is satisfied . . . that the person –

in respect of whom the extradition – the application is made, Lleshaj –

is an extraditable person –

That goes back to the exact same limited issue which the Minister considered.

KIEFEL J:   Would you say that is because, as her Honour seems to have found in the section 39B matter concerning section 16, because the person is not given forewarning or notice of the matter coming before the Attorney or here, the Magistrates Court?

MS DE FERRARI:   No, it is purely a matter of construction of section 12.  What the magistrate did in this case – and really this was a submission of the Minister to her Honour Justice Gordon – is that it made the second, the next step, but the next step is not part of the task of that limited issue, extraditable person.  He decided to add the names – the aliases of which someone had given evidence saying he is also known by these names.  But that is not what is required by the determination of whether the person is an extraditable person.  The limited issue required by that, relevantly in this case, is the belief that Lleshaj was outside of Albania; that is all.  No issue of identity at all.

BELL J:   Can we come back to – well ‑ ‑ ‑

MS DE FERRARI: Section 19, your Honour?

BELL J: Yes, exactly. Now, the person – just looking at section 19(1)(a), the magistrate has to be satisfied that the “person is on remand under section 15”. Is that right?

MS DE FERRARI:   Yes.

BELL J:   It is accepted that your client is on remand under section 15?

MS DE FERRARI:   Yes.

BELL J:   Now, in subparagraph (1)(b):

the Attorney‑General has given a notice under subsection 16(1) in relation to the person –

As a matter of construction do you contend the person in (1)(b) is arguably a reference to a person other than the person in subparagraph (1)(a), namely, the person who is on remand under section 15?

MS DE FERRARI:   Absolutely, your Honour.

BELL J:   All right, how do you make that argument?

MS DE FERRARI: Well, these are preconditions to the exercise of the power, and your Honour will see after (c) there is an “and”, so the issue that is presented by (b) is yes, there is a person on remand under section 16 – (b) and that is an issue for the section 19 magistrate, which the section 19 magistrate must address ‑ has the Attorney‑General given a notice under subsection (2) in relation to that specific person?

Now, the person is Marku and the notice has been given in respect of Lleshaj, undoubtedly.  Further than that, your Honour, the Minister simply paid no attention at all, no attention at all, he could not possibly have considered giving a notice in relation to Marku.  There had been no section 12 warrant.  The Minister conceded, in fact, relied upon in front of her Honour Justice Gordon, on the fact that he did not have any idea, he did not have any idea that Albania was asserting that Marku was Lleshaj.  He did not turn his mind to it.

KIEFEL J:   I see the light is on, Ms De Ferrari.

MS DE FERRARI:   If the Court pleases.

KIEFEL J:   Thank you.  Yes, Mr Lloyd.

MR LLOYD:   In relation to how one can under the Act identify where the issue of identity arises, we note that Justice Gordon addressed that at paragraph 46 of her Honour’s judgment.  Her Honour says it arises under section 12.  It clearly does arise under section 12 because accepting that the definition of “extraditable person” does not necessarily involve identity but deciding to arrest somebody on the basis that that person is an extraditable person requires the link, and there was a link in this case.  There were flaws with the evidence, we do not deny that, but there was a link and section 12 we say inevitably has an identity issue.

KIEFEL J:   A section 39B application could be brought with ‑ ‑ ‑

MR LLOYD:   Section 39B is available in relation to that.

KIEFEL J:   To challenge.

MR LLOYD:   It was not done in this case but it was available.

KIEFEL J:   That is what is available, and beyond the basis that the magistrate has not addressed a correct question what would be the ‑ ‑ ‑

MR LLOYD:   The difficulty would be that they would need to find a jurisdictional error in relation to what the magistrate did, so they could not just do it on the merits, as it were, but there is a measure of review.

KIEFEL J:   It is most likely to be that the correct – or a question necessary to be addressed was not addressed.

MR LLOYD:   Yes.

KIEFEL J:   It would be a jurisdictional fact that the person was the person.

MR LLOYD:   No, because it turns on the magistrate being satisfied on the evidence before the magistrate that the person is the extraditable person, so the jurisdictional fact is whether the magistrate’s satisfaction – so we would not say that identity is a jurisdictional fact at the section 12 stage, but it is required in section 12 and it is subject to section 39B judicial review but that is not review on the merits.

KIEFEL J:   But if the question was not addressed because there was no issue before the magistrate do you say that it is still possible for a jurisdictional fact – sorry, an error of law to arise if it is not addressed?  The person – assume that the person was not the person the subject identified in the extradition request.

MR LLOYD:   If the person was not the person subject, then ‑ ‑ ‑

KIEFEL J:   I mean, I take it your concession at this point is that section 39B proceedings may be brought, and that is a substantive right, but the question is can they bite on anything.

MR LLOYD:   Well, they may have been able to in this case, but I do not say they could in every case.  If the person has relatively clear evidence and they ask themselves the right question, as with any case of whether issue of fact rests with the administrative decision‑maker a court will not be able to intervene on the merits so there is nothing new in that.  The other points are at section 17 of the Act, so after the person has been arrested pursuant to a section 12 warrant and put into remand under section 15, then under section 17 the Minister has a discretion under section 17(1)(b) that the Attorney can let the person go for any reason, and so if the wrong person has been put in, they can raise that with the Attorney‑General and so the Attorney‑General has a discretion at a very early stage.

Then we say under section 22, so after the section 19 stage has been gone through, the Minister has a discretion under section 22(3)(f) to refuse to surrender somebody and identity would be something that could come in in that stage.

KIEFEL J:   It is probably not so helpful for us to consider discretionary matters, but rather where the question arises under the ‑ ‑ ‑

MR LLOYD:   Well, I am trying to identify where the Act specifically envisages that identity can arise.

KIEFEL J:   Yes.

MR LLOYD:   Can I just finally add to that a matter which Justice Gordon notes in paragraph 53 of her judgment?  In the circumstances of this case the Treaty provides as a requirement that there be material in relation to identity, and that is picked up as a mandatory consideration under section 22(3)(e) of the Act, and that is what her Honour says on the last page of the judgment, and so that would be a matter which by reason of the Treaty, so that is not in every case.  I do not want to suggest to the Court that this arises in every case, but in this Treaty there is an identity requirement which we say falls to the Attorney‑General to decide.

BELL J:   You mentioned a little earlier that if an issue of identity arises then it is not so much in the issue of the warrant under section 12 but in the execution of the warrant that a challenge might arise.  Was that what you were putting?

MR LLOYD:   It could be at both stages, so one person could say I am not the person who is in the section 12 warrant, and they could do that by habeas corpus, amongst other means ‑ ‑ ‑

BELL J:   That is the matter I wanted to raise with you.  There has been some suggestion perhaps that habeas would be available and, indeed, Kainhofer seems to contemplate that in some circumstances that might be a mechanism.

MR LLOYD: Yes, and Justice Gordon certainly seemed to think it was, and for what it is worth, my client said at the section 19 hearing and has said at every stage since that if unlawfulness of detention can be made out it is available.

BELL J:   Yes.

MR LLOYD:   Now, what is put against us in relation to that, as I say, well, they are not being unlawfully detained because the section 12 warrant was valid and then the remand under section 15 was valid so they may have trouble in relation to a habeas corpus.

BELL J:   Yes.

MR LLOYD:   That may be, or may not be, it depends how they put their case.   But to answer your Honour’s question, I submit, it approach in two ways.  It also arises at the section 12 stage that one could seek a section 39B judicial review of the decision of the magistrate, which would be separate to ‑ ‑ ‑

BELL J:   That would be to review the decision to issue a warrant, including the alias.

MR LLOYD:   Yes.  So, for example, that might be available if you said there was, in fact, no evidence or it is Wednesbury unreasonable – or it is not Wednesbury any more – it was Li unreasonable, so it could be done on that basis.  It could be done on the basis that the magistrate was misled as to the true position, so there are various ways in which it could arise.  The only other thing I was going to say is that – we say that the reasoning of this Court in Kainhofer and the critical aspect of it is set out in the learned trial judge’s reasons on page 28 of the application book in the middle of the quoted paragraphs.

I mean, it is put against us that Kainhofer did not decide an identity point, we accept that, but it is an essential part of the reasoning as to how – what the function of the section 19 magistrate is and that the section 19 magistrate is not to review either the section 15 remand or the section 16 notice and they are to proceed on the assumption, as their Honours put it:

must proceed on the footing that the person whose surrender is sought is an extraditable person –

which means that they did do the offence. Then what the section 19 magistrate is doing is working out dual criminality and extradition objections and whether the paperwork is right. So we say that is correct. The only way we say your Honours would grant special leave is if you think Kainhofer is wrong and want to revisit Kainhofer but apart from that.

Then there is also the separate issue, which is the issue my friend touched upon in relation to the – as it was put below, the dissonance in this case between the section 15 document and the section 16 document.  Under section 15 in this case – sorry, I should say one thing about section 16.  My friend says that Justice Gordon decided that identity does not arise in section 16.  What I think her Honour decided was that in the circumstances of this case where the section 16 notice is issued prior to a section 12 arrest warrant so the person is not actually in detention, all the Attorney‑General was doing is saying, “I have received a request” ‑ that is what a section 16 notice does – it does not require identity.

In this particular case there was not an identity assessment done by the Attorney‑General and that would not show a flaw.  But in other circumstances where the person is in detention the Attorney‑General might look at identity at that stage, it is at least possible, and so – well, that is what I want to say about that.

The last point was in relation to the so‑called dissonance between the section 1(a) document in which here the applicant is on remand as Mr Lleshaj, also known as Marku, which he denies, but nonetheless the section 12 magistrate was satisfied the section 15 magistrate remanded him in those terms.  Then under 19(1)(b) the Attorney‑General has a notice just in the name “Lleshaj” and they say there is a dissonance, there is a section 16 notice for Lleshaj, the person on remand is Lleshaj, also known as Marku.

What we said was that is not a dissonance, you do not have to in a section 16 notice name every alias that a person goes by.  It is clearly the same person.  To the extent that there is any conceivable doubt you could just look at the request which is the subject of the section 16 notice and the request is for Lleshaj, also known as Marku.  So it is clear that there is not any dissonance and so we say that that is why that amendment ground was hopeless and why her Honour Justice Dodds‑Streeton did not err in dismissing it.  May it please the Court.

KIEFEL J:   Yes, Ms De Ferrari.

MS DE FERRARI:   Your Honours, what I would like to do is just inject an element of reality about what happens at the section 12 stage.  Your Honours know that section 12 is done ex parte.  Typically it is done on the papers.  In this case, the section 12 application was made on 3 March 2009.  The first thing that my client knew anything about was when he was picked up on 11 March 2009, brought before the section 15 magistrate and told here is the warrant.

KIEFEL J:   I do not think we have any difficulty about how it works in operation, but that does not prevent a section 39B review.

MS DE FERRARI:   Well, your Honours, effectively, in this case it is not really a matter whether it is a section 39B review or anything else.  If my client had known at the time of the section 15 stage the affidavit material upon which the section 12 magistrate had decided to issue the warrant, in my submission, it was an open and shut case that you would go to the Supreme Court and the Supreme Court would set it aside as an ex parte order made on false material.  There is no doubt about that, but he did not know that.  By the time he was remanded under section 15, your Honours – his detention is under section 15, the section 12 warrant is gone.  That is what I am saying about injecting some sort of air of reality about challenging ‑ ‑ ‑

KIEFEL J:   I see.  But would not his detention now still be based inevitably upon the issue of the first warrant?

MS DE FERRARI: Well, your Honour, clearly, the section 15 order is gone as well. The section 19(9) warrant is what is keeping him there. There is no jurisdictional error in terms of the section 19 magistrate not dealing with the issue of identity, so the question really is – and it is a big question – can you undo all of it, the section 19(9) warrant on a habeas case, because that is what it amounts to, your Honour.

Now, in terms of what the High Court said, the joint reasons said about not questioning – not putting a question – the order of remand under section 15, that is in the joint reasons.  It is not something that Justice Toohey or Justice Gummow said as well.  In my submission, your Honour, that needs to be put in context of what the High Court was dealing with there.  The High Court there was dealing with the issue of extraditable person and who can and who cannot review that question.

The High Court could not, in my submission, possibly have had in mind the factual circumstances, as far as my client is concerned, the factual mess that was created at the section 12 stage in this case.  To the extent that that – and really, at the end of the day, when one looks at the fact that section – the question of extraditable person really only requires satisfaction that Lleshaj is outside of Albania, all that stands in the way is that little bit of the joint judgment reason saying you cannot question the section 15 order.

BELL J:   That little bit of the reasons is significant, albeit the precise question was not being raised, but it is difficult to make good the proposition, Ms De Ferrari, that one would not need to successfully challenge Kainhofer.

MS DE FERRARI:   I understand, your Honour, and what I will be saying is in that respect – that is why in that respect that is what stands in the way, that is why leave should be granted because, in my submission, this Court could not possibly have intended the circumstances where the section 12 warrant is obtained in the circumstances it is in this case, that is, on false information.  If the Court pleases.

KIEFEL J:   The Court will adjourn briefly to consider its position.

AT 3.00 PM SHORT ADOURNMENT

UPON RESUMING AT 3.04 PM:

KIEFEL J: A Full Court of the Federal Court held that the question whether the applicant is in fact the person convicted of murder in Albania but escaped from prison and who is now the subject of an extradition request was not one to be addressed by the magistrate undertaking the functions given by section 19 of the Extradition Act 1988 (Cth). That is the only issue which is the subject of the applications for special leave. The applications do not raise questions as to other avenues the applicant may have to challenge the decision that he is the person who may be eligible for surrender or to challenge his detention as lawful. On the issue relating to section 19 we see no reason to doubt the conclusion reached by the court below. Special leave is refused.

AT 3.05 PM THE MATTERS WERE CONCLUDED