FEDERAL COURT OF AUSTRALIA
Matson v Attorney-General (Cth) [2022] FCA 461
File number(s): QUD 356 of 2020 Judgment of: COLLIER J Date of judgment: 29 April 2022 Catchwords: PRACTICE AND PROCEDURE – application for reinstatement – whereas proceeding stands dismissed by operation of self-executing order – whereas non-compliance with self-executing order was allegedly a result of diary error – whereas no sworn evidence was provided in support of reasons for non-compliance – applicant refused to give evidence under oath as to reasons for non-compliance – re-opening of case once judgment reserved – leave sought to file further submissions and grounds of appeal once judgment reserved - applicant would suffer substantial prejudice if appeal not reinstated - in any event applicant’s proposed grounds of appeal are without merit – leave to file further submissions and grounds of appeal refused - application for reinstatement dismissed
EXTRADITION – validity of surrender decision made under s 22(3)(f) of the Extradition Act 1988 (Cth) - whether the Attorney-General is bound to take into account Indigenous heritage in making such a decision – established authority provides that discretion under s 22(3)(f) of the Extradition Act 1988 (Cth) is unfettered – in any event Indigenous heritage was considered – special connection of Indigenous persons to traditional lands is long-established – Love and Thoms not analogous to the present case given the applicant’s Australian citizenship – grounds of appeal have no prospects of success
Legislation: Australian Citizenship Act 2007 (Cth)
Evidence Act 1995 (Cth)
Extradition Act 1988 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Migration Act 1958 (Cth)
Native Title Act 1993 (Cth)
Treaty on Extradition between Australia and the United States of America
Cases cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Autodesk Inc v Dyason[No 2] [1993] HCA 6; (1993) 176 CLR 300
Chen v Monash University (2016) 337 ALR 525
De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 330
epublic of Croatia [2009] FCAFC 111
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13
Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338
In Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203
Karnafi v Minister for Immigration & Multicultural Affairs [1999] FCA 191
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- AGLC
- Matson v Attorney-General (Cth) [2022] FCA 461
- Case
- [2022] FCA 461
- Decision Date
CaseChat Overview and Summary
The court found that the applicant's non-compliance with the self-executing order was allegedly due to a diary error, but no sworn evidence was provided to support this claim. Furthermore, the applicant refused to give evidence under oath regarding the reasons for non-compliance. The court held that re-opening the case once the judgment was reserved was not permissible and that the applicant's proposed grounds of appeal were without merit. The court concluded that the established authority provided that the discretion under s 22(3)(f) of the Extradition Act 1988 (Cth) was unfettered and that Indigenous heritage had already been considered in the decision-making process. The court also found that Love and Thoms were not analogous to the present case due to the applicant's Australian citizenship. As a result, the application for reinstatement was dismissed.
The court ordered that the applicant's application for leave to file further supplementary submissions and an additional affidavit annexing a Draft Further Supplementary Notice of Appeal was refused. The application for reinstatement of the proceeding was dismissed, and the applicant was ordered to pay the respondent's costs of and incidental to the proceedings. The costs were to be taxed if not otherwise agreed, in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The applicant’s application for leave to file further supplementary submissions dated 6 April 2022, and an additional affidavit annexing a Draft Further Supplementary Notice of Appeal dated 5 April 2022, is refused.
2. The applicant’s application for reinstatement of this proceeding, filed 14 February 2022, is dismissed.
3. The applicant pay the costs of the respondent of and incidental to the proceedings, to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In Love and Thoms special cases were stated for the opinion of the High Court, being whether each of the plaintiffs in those proceedings was an “alien” within the meaning of s 51(xix) of the Constitution. Section 51(xix) relevantly provides that the Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to naturalization and aliens. Both the Migration Act 1958 (Cth)(Migration Act) and the Australian Citizenship Act 2007 (Cth) were enacted pursuant to s 51(xix). The plaintiffs in those proceedings were born overseas, and were citizens respectively of Papua New Guinea and New Zealand. They were not Australian citizens, but held Australian residency visas. They contended that they had a special status as a “non-citizen, non-alien” because although they were non-citizens, they could not be aliens because they were Aboriginal persons. The visas of both plaintiffs were cancelled by a delegate of the Minister for Home Affairs under s 501(3A) of the Migration Act, which required the Minister to cancel a person's visa if the person has been convicted of an offence for which a sentence of imprisonment of 12 months or more is provided. At that point the plaintiffs became unlawful non-citizens and were liable to be removed from Australia. The majority of the High Court found that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2]) were not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. Accordingly, as Aboriginal Australians the plaintiffs in Love and Thoms were not within the reach of the “aliens” power, and although they were not citizens, no power of deportation existed in respect of them being non-citizen (but non-alien) Aboriginal Australians. A number of immediate problems arise in respect of this aspect of Mr Matson’s case. First, the legal foundations of the legislation considered in Love and Thoms, and those relevant in the present case, are different. As I have already noted, Love and Thoms concerned the question whether Indigenous Australians were “aliens” within the meaning of s 51(xix) of the Constitution. In contrast, the Extradition Act was enacted pursuant to s 51 (xxix) of the Constitution, namely the external affairs power. As Gleeson CJ observed in O'Donoghue v Ireland [2008] HCA 14 in discussing the Extradition Act:1.…Extradition of alleged or convicted offenders to and from Australia is a matter which closely affects Australia's foreign relations. It commonly involves considerations of reciprocity. Australia's foreign relations are conducted by the Commonwealth, but State judicial officers are involved in the administration of extradition law. Part II of the Extradition Act establishes the procedures to be followed where a request for extradition of a person is made to Australia by an extradition country. The ultimate decision to surrender, where made, is a discretionary decision by the Attorney-General of the Commonwealth (s 22)….