Matson v Attorney-General (Cth)

Case [2022] FCA 461


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

Bishop v R (1982) 58 FLR 233

Brown v Petranker (1991) 22 NSWLR 717

Chen v Monash University (2016) 337 ALR 525

Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41

Dalac v R [2015] NSWCCA 121

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

Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22

Karnafi v Minister for Immigration & Multicultural Affairs [1999] FCA 191

Lobban v Minister for Justice [2016] FCAFC 109

Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3

Mabo and Others v Queensland (No. 2) [1992] HCA 23

Matson v Attorney-General (Cth) [2021] FCA 161 at [218]

Matson v Attorney-General (No 2) [2022] FCA 213

Matson v Attorney-General [2020]…

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Details
AGLC
Matson v Attorney-General (Cth) [2022] FCA 461
Case
[2022] FCA 461
Decision Date

CaseChat Overview and Summary

In the matter of Matson v Attorney-General (Cth) [2022] FCA, the Federal Court was required to consider Mr Matson's application to reinstate his appeal against the Attorney-General's decision to surrender him to the United States. The case had a complex procedural history, with multiple extensions of time for filing a supplementary notice of appeal and various applications for further extensions. The primary issue before the court was whether Mr Matson's application for reinstatement should be allowed, given that his proceeding had been dismissed by operation of a self-executing order due to non-compliance with the previous time extension. Additionally, the court needed to determine if the Attorney-General was bound to consider Indigenous heritage in making the surrender decision under s 22(3)(f) of the Extradition Act 1988 (Cth).

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

The application for reinstatement was listed for a case management hearing on 9 March 2022. At that hearing I ordered submissions and material on the question of reinstatement be filed. Submissions were received from both the applicant and the respondent.BACKGROUND This proceeding has a long and complex procedural history. It was commenced by Mr Matson filing a notice of appeal on 16 November 2020 against the decision of Rangiah J (primary Judge) in Matson v Attorney-General [2020] FCA 1558. In that case his Honour dismissed Mr Matson’s application for judicial review, recusal, adjournment, discovery and the re-opening of evidence in respect of the Commonwealth Attorney-General’s decision that Mr Matson be surrendered to the United States pursuant to s 22(2) of the Extradition Act 1988 (Cth)(Extradition Act). At the first case management hearing held in this appellate matter, on 11 March 2021, I made orders requiring Mr Matson to file a supplementary notice of appeal by 4.00 pm on 8 April 2021. At the case management hearing before me, on 9 July 2021, the time for Mr Matson to file a supplementary notice of appeal was extended to 30 September 2021, with a self-executing order included in the terms outlined at [1] above. At that case management hearing Mr George Pharmacis of Pharmacis Canning Lawyers appeared for Mr Matson and consented to the self-executing order being made. On 28 September 2021, Mr Pharmacis emailed the Federal Court Registry seeking an extension of six weeks to file a supplementary notice of appeal. He wrote:Dear Associate, Our offices act for Mr Baron Philip Matson (dob 16/09/1977) in the above matters. We are respectfully seeking to urgently list this matter on for a mention to seek leave of the Court to extend the filing deadline for 6 weeks given the deadline for filing was 30 September 2021. As outlined in the below emails, our offices have had to retain new Counsel, Ms Lisa De Ferrari, due to unforeseen circumstances. Counsel will need the further 6 weeks to settle the further amended outline of appeal in accordance with Her Honours directions. Our offices are proposing the following dates: 4pm on 11 November 2021 appellant file and serve Further Amended notice of appeal and draft index of appeal book A and B;4pm 15 November 2021 appellant file and serve submissions with respect of further amended notice of appeal, together with Part A and B of Appeal Book; 4pm on 2 December 2021 respondent file and serve submissions in respect of the further amended notice of appeal;4pm on 8 December 2021 appellant file and serve part C of appeal book. 4pm on 14 December 2021 parties file and serve hyperlink list of authorities. Counsel has availability this week or next week for a mention to be called and has confirmed she is in a position to comply with the above dates. This application for an extension of time was heard by Reeves J as duty Judge on 30 September 2021. At that hearing Ms De Ferrari SC of Counsel appeared for Mr Matson to press the application for an extension of time, as well as the removal of the self-executing order. By orders dated 1 October 2021, his Honour allowed the extension of time but refused to vacate the self-executing order. In doing so, the time for Mr Matson to file a supplementary notice of appeal was extended to 5 November 2021.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Matson’s application of 6 April 2022 to file further supplementary submissions and an additional affidavit dated 5 April 2022 (annexing a Draft Further Supplementary Notice of Appeal dated 5 April 2022) is refused.CONCLUSION For the reasons I have outlined, the application for reinstatement of his appeal is dismissed. Costs should follow the event.

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)….