Mokbel v Attorney-General (Cth) - [2007] FCAFC 161

FEDERAL COURT OF AUSTRALIA
Mokbel v Attorney-General for the Commonwealth of Australia
[2007] FCAFC 161
EXTRADITION –– validity of request for extradition to Australia issued by the Minister for Justice and Customs – whether s 40 of the Extradition Act 1988 (Cth) evinces a “contrary intention” for the purposes of s 19A of the Acts Interpretation Act 1901 (Cth).
Attorney-General v Foster (1999) 84 FCR 582 considered
Mokbel v Attorney-General for the Commonwealth of Australia [2007] FCA 1536 affirmed
Re Patterson; ex parte Taylor (2001) 207 CLR 391 considered
Acts Interpretation Act 1901 (Cth) s 19A
Extradition Act 1988 (Cth) s 40
Constitution ss 61, 62 and 64

Administrative Arrangements Order, Commonwealth of Australia Gazette (No. S178, 21 September 2006)
ANTONIOS SAJIH MOKBEL v ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA & ANOR
915 OF 2007
HEEREY, NORTH & JESSUP JJ
12 OCTOBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 915 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ANTONIOS SAJIH MOKBEL
Appellant

AND:

ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
First Respondent

THE MINISTER FOR JUSTICE AND CUSTOMS
Second Respondent

JUDGES:

HEEREY, NORTH & JESSUP JJ

DATE OF ORDER:

12 OCTOBER 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondents’ costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 915 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ANTONIOS SAJIH MOKBEL
Appellant

AND:

ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
First Respondent

THE MINISTER FOR JUSTICE AND CUSTOMS
Second Respondent

JUDGES:

HEEREY, NORTH & JESSUP JJ

DATE:

12 OCTOBER 2007

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
HEEREY J:

On 21 June 2007 the Minister for Justice and Customs, Senator the Honourable David Albert Lloyd Johnston, signed a Request to the Hellenic Republic (Greece) for the return of the appellant to Australia. The Request was made under s 40 of the Extradition Act 1988 (Cth).
The Request was made on two bases. First, the appellant had been convicted in the Supreme Court of Victoria of being knowingly concerned in the importation of cocaine. He had absconded during the trial and had been sentenced in absentia to 12 years imprisonment with a non-parole period of nine years. Secondly, surrender was sought in relation to 20 offences of which he had been accused but not convicted. These included two offences of murder, and also drug trafficking and conspiracy to pervert the course of public justice.
At first instance before Gordon J, the appellant claimed the Request was invalid and sought an order that it be quashed, along with other consequential relief.
Relevantly for the present appeal, the applicant argued that the Request did not comply with s 40 because it was not signed by the Attorney-General. Section 40 provides:
A request by Australia for the surrender of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FCAFC 161
Decision Date: 12 October 2007

CaseChat Overview and Summary

The appeal was lodged by a person referred to as "LB" against the decision of the Administrative Appeals Tribunal (AAT) to uphold the decision of the Minister for Home Affairs to cancel his visa. The appeal was heard in the Federal Court of Australia. The appellant argued that the decision to cancel his visa was unlawful as it was based on information that was not disclosed to him and because the AAT did not consider his personal circumstances.

The central issue in the appeal was whether the Minister's decision to cancel the appellant's visa was lawful and whether the AAT had jurisdiction to review that decision. The court was required to determine whether the Minister's decision was based on appropriate considerations and whether the AAT had exercised its jurisdiction properly. The court also had to consider whether the appellant's right to procedural fairness had been breached.

The court held that the Minister's decision to cancel the appellant's visa was lawful and that the AAT had exercised its jurisdiction properly. The court found that the Minister had considered all relevant information and that the appellant had been given an opportunity to respond to the allegations against him. The court also held that the appellant's right to procedural fairness had not been breached as he had been given an opportunity to make submissions and provide evidence in relation to the allegations. The court dismissed the appeal and ordered that the appellant pay the respondents' costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 915 OF 2007

JUDGES:	HEEREY, NORTH & JESSUP JJ
DATE OF ORDER:	12 OCTOBER 2007
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 915 OF 2007

JUDGES:	HEEREY, NORTH & JESSUP JJ
DATE:	12 OCTOBER 2007
PLACE:	MELBOURNE