Peniche v Vanstone

Case [2000] FCA 1306

FEDERAL COURT OF AUSTRALIA

Cabal v Vanstone
[2000] FCA 1306

JUDICIAL REVIEW – extradition proceedings – review of decision to issue notice – arrest warrants issued in Mexico – foreign warrants subject to amparo stay – where stay prevents immediate execution of warrant – criminal prosecution not otherwise impeded – purpose of extradition – where appellant seeks declaration that he is not an “extraditable person” within the meaning of the Extradition Act – where the court does not have jurisdiction to make declaration sought.

Judiciary Act 1903 (Cth) s39B(1) and (1A)
Extradition Act 1988 (Cth) ss 6, 16, 22
Extradition (United Mexican States) Regulations 1991 (Cth)

Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 cited
Foster v Minister for Customs and Justice (1999) 164 ALR 357 followed
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR referred to
Transport Workers Union v Lee (1998) 84 FCR 60 cited
Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 cited

Karst, Latin American Legal Institutions: Problems for Comparative Study (1966)

CARLOS CABAL (PENICHE) and MARCO PASINI (BERTRAN) v THE HONOURABLE AMANDA VANSTONE in her capacity as Minister of Justice for the Commonwealth, DAVID McDONNELL, BARRY BRAUN M and LISA HANNAN M
V 218 of 2000

DRUMMOND, NORTH and GYLES JJ
MELBOURNE
15 SEPTEMBER 2000


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 218 OF 2000

BETWEEN:

CARLOS CABAL (PENICHE)
FIRST APPELLANT

MARCO PASINI (BERTRAN)
SECOND APPELLANT

AND:

THE HONOURABLE AMANDA VANSTONE
in her capacity as Minister for Justice for the Commonwealth
FIRST RESPONDENT

DAVID McDONNELL
SECOND RESPONDENT

BARRY BRAUN M
THIRD RESPONDENT

LISA HANNAN M
FOURTH RESPONDENT

JUDGE:

DRUMMOND, NORTH and GYLES JJ

DATE OF ORDER:

15 September 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.   The appeal is dismissed.

2.   The appellants pay the costs of the respondents.

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

V 218 OF 2000

BETWEEN:

CARLOS CABAL (PENICHE)
FIRST APPELLANT

MARCO PASINI (BERTRAN)
SECOND APPELLANT

AND:

THE HONOURABLE AMANDA VANSTONE
 in her capacity as Minister for Justice for the Commonwealth
FIRST RESPONDENT

DAVID McDONNELL
SECOND RESPONDENT

BARRY BRAUN M
THIRD RESPONDENT

LISA HANNAN M
FOURTH RESPONDENT

JUDGE:

DRUMMOND, NORTH and GYLES JJ

DATE:

15 September 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

  1. This is an appeal from orders of Kenny J, who dismissed three applications for judicial review under s 39B(1) and (1A) of the Judiciary Act 1903 (Cth) ([2000] FCA 359; 173 ALR 63 (sub nom Bertran v Vanstone;  Peniche v Vanstone)).  Although we can ultimately deal with the issues quite economically because of the comprehensive reasons for judgment below, the circumstances are unusual and need to be explained.  For this purpose, it is convenient to substantially adopt for the purposes of this judgment the explanation of the factual background, the statutory context, the relevant Mexican law and the review application…

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Details
AGLC
Cabal v Vanstone [2000] FCA 1306
Case
[2000] FCA 1306
Decision Date

CaseChat Overview and Summary

In the matter of Peniche v Vanstone, the applicants, Carlos Cabal Peniche and Marco Pasini Bertran, both Mexican citizens, appealed against orders that dismissed their applications for judicial review of decisions regarding their extradition to Mexico. The applicants, who had not returned to Mexico since leaving the country, sought relief against the decisions of the Minister for Justice and Customs to issue extradition notices and the subsequent detention of Cabal. The applicants argued that they were not extraditable persons and sought declarations and orders for their release.

The court was tasked with determining whether the Minister’s decision to issue the extradition notices was valid and whether the applicants' detention was lawful. Key issues included the interpretation of the Extradition Act 1988, specifically whether warrants for arrest that were stayed under Mexican law were still considered "in force" for the purposes of extradition, and whether the Minister's decision-making process was flawed. The court examined the advice provided to the Minister and whether the Minister appropriately considered the Mexican amparo stays and other relevant factors.

The court found that the Minister's decision to issue the extradition notices was valid as the advice provided to her was both correct and satisfactory. The court further held that the construction of the amparo orders, being matters of foreign law, did not affect the validity of the Minister's decision. The court rejected the applicants' arguments that there were flaws in the decision-making process or that the Minister should have made further inquiries. Consequently, the court dismissed the appeal and ordered the appellants to pay the respondents' costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellants pay the costs of the respondents.

Background

Background to the litigation

This is an appeal from orders of Kenny J, who dismissed three applications for judicial review under s 39B(1) and (1A) of the Judiciary Act 1903 (Cth) ([2000] FCA 359; 173 ALR 63 (sub nom Bertran v Vanstone; Peniche v Vanstone)). Although we can ultimately deal with the issues quite economically because of the comprehensive reasons for judgment below, the circumstances are unusual and need to be explained. For this purpose, it is convenient to substantially adopt for the purposes of this judgment the explanation of the factual background, the statutory context, the relevant Mexican law and the review application by the primary judge.FACTUAL BACKGROUND The circumstances in which the applications were made were as follows. The applicants in the three proceedings, Carlos Cabal Peniche (“Cabal”) and Marco Pasini Bertran (“Pasini”), are citizens of the United Mexican States (“Mexico”). They left Mexico some years ago and have not returned there since.CARLOS CABAL Between 31 August 1994 and 15 May 1998, a total of thirteen warrants for the arrest of Carlos Cabal were issued in Mexico by Federal District judges in Criminal Matters. The warrants for arrest allege the commission of what might loosely be termed banking offences. Twenty-three of the alleged offences concern the contravention of various provisions of the Mexican Law of Credit Institutions. Three of the alleged offences are for fraud. All the offences allegedly occurred in Mexico City between 1993 and 1994. According to a memorandum provided by the Attorney-General’s Department (“the Department”) to the Minister on 7 January 1999:“The 23 offences against the Law of Credit Institutions allege that Cabal misused his position as President, major shareholder and member of the High Credit Committee of a bank, the Banco Union, to authorise loans and lines of credit to numerous companies whose solvency and ability to repay the loans was questionable. It is alleged that these companies were, in the main, controlled by Cabal himself and the loans received by these companies ultimately used by Cabal for his personal purposes, and acquiring another bank, the Banca Cremi. In some instances, the loans by Banco Union authorised by Cabal, which ultimately were received by the companies he controlled, were also used to benefit persons associated with him; in other instances money was diverted, with Cabal’s knowledge, from the accounts of other companies held at Banco Union to the accounts of the companies controlled by him to be used, ultimately, for his personal purposes. The amounts involved in the criminal conduct which is the subject of the 23 offences against the Law of Credit Institutions range from US$50 to $100 million. …The 3 fraud offences alleged against Cabal arise out of fraudulent scheme practised by officers in the Banco Union – with Cabal’s knowledge and authorisation – upon unsuspecting companies who approached the bank for loans. Selected companies seeking loans from Banco Union were persuaded by officers in Banco Union to participate in a scheme in which the loans would ostensibly be granted to the companies but would, in fact, be diverted to third party companies called the “terminal accredited persons”. The unsuspecting companies were told that the “terminal accredited persons” would pay them high rates of interest. The unsuspecting companies were required to sign blank promissory notes by way of security and hand these to officers in Banco Union. It is alleged that Cabal designed the scheme and authorised his officers in Banco Union to market the scheme to selected unsuspecting corporate customers.The “terminal accredited persons” in fact, were paper companies or companies mainly controlled by Cabal. It is alleged that neither Cabal nor his officers in Banco Union had any intention to ensure payment of high rates of interest by the “terminal accredited persons” to the unsuspecting victim companies. The money was not repaid to the companies but rather it was used by Cabal for his own purposes. At the end of the day the victim companies owed money to the bank but the “terminal accredited persons” were without any assets. In this scheme, 3 companies are alleged to have been defrauded of approximately US$54 to $57 million in each case. A total loss of US$242,722,590 was allegedly suffered by Banco Union and the defrauded companies as a result of Cabal’s conduct.” Cabal was arrested in Australia pursuant to a provisional arrest warrant on 11 November 1998. The warrant had been issued on 10 November 1998 under s 12 of the Extradition Act 1988 (“the Act”) on the application of Mexico. Since 11 November 1998, he has been held in custody at Port Phillip Prison.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

By the notices of appeal, Cabal sought the following relief:(1)A declaration that he is not an “extraditable person” within the meaning of s 6 of the Act.(2)A declaration that the decisions of the first respondent to issue the notices under s 16 of the Act were invalid and provide no lawful basis for his detention.(3) An order against the first respondent in the nature of certiorari quashing these decisions.(4)A declaration that there is no authority under the Act for his continued detention.(5)An order in the nature of habeas corpus directing his release from custody pursuant to the Act.DECISION ON APPEALSECOND CABAL NOTICE It is convenient to first discuss the issues in relation to the second Cabal notice because, by then, the Minister was aware of the amparo orders. The effect of s 16(2) is that the validity of the notice depends upon (inter alia) the Attorney General being of the opinion that Cabal was an extraditable person in relation to the extradition country. Whether Cabal was, in truth, an extraditable person in relation to the extradition country has no direct relevance to the issue. In our opinion, the attack upon the validity of the notice founded upon the proper construction of s 6(a)(i) was misconceived. Cabal’s arguments are sufficient to establish that there remains a real issue as to the question of construction. However, even if, contrary to the opinion of the primary judge, a warrant for arrest which is stayed is not “in force” within the meaning of s 6(a)(i), there is nothing in the evidence to support a finding that the Minister acted upon a contrary construction of that section in coming to the decision to notify. The advice which was tendered to the Minister at the time the decision was made was that the amparo stays were not operative, so leaving the warrants for arrest in force. If the amparo stays had not been in operation, then the advice was both demonstrably correct and involved no departure from the construction of s 6(a)(i) which is contended for by Cabal. Furthermore, assuming the amparo stays to be a matter which the Minister was obliged to take into consideration, she plainly did just that. The correctness of the advice which the Minister received and, it may be presumed, acted upon, is not relevant to the grounds available for judicial review of the decision. The construction and effect of the amparo orders made in Mexico in the present case, being matters of foreign law, are matters of fact rather than law for the purposes of judicial review of this decision. Assuming, for the purposes of the argument, that there may be circumstances in which a decision-maker should make further inquiries, as with the primary judge we can see no basis for the operation of such a principle in the present case. The inquiries which the Minister’s advisers made of Mexico as to both the amparo stays and the issue of prescription were appropriate, and the replies received satisfactory on their face. We need not repeat what the primary judge had to say on this point.

Ratio Decidendi

Legal Principle Established

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