FEDERAL COURT OF AUSTRALIA
Rivera v Minister for Home Affairs [2008] FCA 1
PRACTICE AND PROCEDURE – application for referral to a legal practitioner on Pro Bono Panel under O 80 r 4 of the Federal Court Rules 1979 (Cth) – Court’s discretion – central application discloses no reasonable prospects of success.
Extradition Act 1988 (Cth) ss 23, 26(5), 26(6)
Federal Court Rules 1979 (Cth) O 80 r 4Hicks v Ruddock (2007) 156 FCR 575 cited
Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 cited
Rivera v Human Rights and Equal Opportunity Commission [2007] FCA 2037 cited
Rivera v The Commonwealth of Australia [2007] FCA 1465 cited
Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 319 citedLAWRENCE RIVERA v MINISTER FOR HOME AFFAIRS
NSD 2546 OF 2007TAMBERLIN J
4 JANUARY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2546 OF 2007
BETWEEN:
LAWRENCE RIVERA
ApplicantAND:
MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
TAMBERLIN J
DATE OF ORDER:
4 JANUARY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant’s application under O 80 r 4 of the Federal Court Rules 1979 (Cth) be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2546 OF 2007
BETWEEN:
LAWRENCE RIVERA
ApplicantAND:
MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
TAMBERLIN J
DATE OF ORDER:
4 JANUARY 2008
WHERE MADE:
SYDNEY
REASONS FOR JUDGMENT
These reasons concern an application made by Mr Rivera in court on 3 January 2008. The application is for an order, pursuant to the Court’s discretionary power under O 80 r 4 of the Federal Court Rules 1979 (Cth), that this matter be referred to a legal practitioner on the Pro Bono Panel for legal assistance.
This application was made subsequent to numerous other applications made by Mr Rivera in this Court since he was placed in custody in Australia in 2002 pending extradition to the United States of America to face charges relating to a murder he is alleged to have committed in California in May 2002. The most recent of these applications was determined by Flick J on 13 December 2007, in which his Honour declined to expedite the hearing of an appeal from the decision of a Judge of the Court which dismissed an application for review of a decision of the Human Rights and Equal Opportunity Commission: see Rivera v Human Rights and Equal Opportunity Commission [2007] FCA 2037. The history of some of Mr Rivera’s earlier litigation is summarised by Gyles J in Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191. It is not necessary for me to repeat or elaborate upon this extensive litigious history.
On 28 December 2007, Mr Rivera filed an application seeking a writ of habeas corpus and other relief. The matter was listed…
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- Case
- [2008] FCA 1
- Decision Date
CaseChat Overview and Summary
The Court considered the broad discretion afforded by Order 80 Rule 4(2) in referring litigants for pro bono assistance, noting that such discretion is not restricted to the factors listed therein. However, the Court found that Mr Rivera’s application did not meet the threshold of reasonable prospects of success. The Court emphasised that for habeas corpus to issue, Mr Rivera needed to demonstrate that his detention was unlawful, which he failed to do. His argument that lawful custody ceased upon boarding the flight was deemed unfounded as the surrender warrant issued under the Extradition Act 1988 (Cth) authorised his continued detention until transported to the United States. Given the lack of reasonable prospects of success and the absence of evidence or authority to the contrary, the Court concluded that referring Mr Rivera’s case to the Registrar for pro bono representation was not required by the administration of justice.
In light of the foregoing, the Court dismissed Mr Rivera’s application under Order 80 Rule 4 of the Federal Court Rules 1979 (Cth) with costs. The Court held that the warrant remained a lawful authorisation for Mr Rivera’s detention in Australia until he was transported to the United States, and the case lacked merit.
Orders
Orders of the court
1. The applicant’s application under O 80 r 4 of the Federal Court Rules 1979 (Cth) be dismissed with costs.
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
Established by: TAMBERLIN J
O 80 r 4(1) of the Federal Court Rules 1979 (Cth) provides:‘The Court or a Judge may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to a proceeding before the Court.’(Emphasis added.)When considering such an application, O 80 r 4(2) empowers the Court to take into account any matter it deems appropriate, including the means of the litigant, the capacity of the litigant to otherwise obtain legal assistance and the nature and complexity of the proceeding. This discretion is a broad one, and is not limited by those matters set out in O 80 r 4(2): see Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 319 at [10]-[11]. The issue in the present reasons is whether the discretion of the Court should determine that the “administration of justice” requires Mr Rivera’s proceedings to be referred to the Registrar to arrange for pro bono legal representation. In my view, the administration of justice in this case does not require that the matter be referred to a Registrar to arrange pro bono legal representation or advice for Mr Rivera because his application of 28 December 2007 discloses no reasonable prospects of success, and Mr Rivera has not adduced any evidence or provided any authority to indicate otherwise. The lack of reasonable prospects of success, or where a case is “patently hopeless” or has no “arguable basis”, has been regarded by the Court as sufficient reason to refuse a referral under O 80 r 4: see Taylor [2005] FCA 319 at [10]; Rivera v The Commonwealth of Australia [2007] FCA 1465 at [34]. As a matter of discretion, therefore, I am of the view that it is not appropriate to prolong the present proceedings which are without merit. The reason Mr Rivera’s case discloses no reasonable prospects of success is because it relies entirely on a premise that cannot be maintained. For habeas corpus to issue, an applicant must show that he or she is unlawfully held in the custody or control of the respondent: see Hicks v Ruddock (2007) 156 FCR 575 at 587-592. Mr Rivera’s application depends on the assertion that his present detention is unlawful because, once he placed on the commercial airline flight on 22 December 2007, his lawful custody under Australian authorities ceased, and the continuation of his custody since that date is without lawful authority. This assertion is without substance because the authority to detain Mr Rivera did not, and indeed could not, terminate at the point at which Mr Rivera boarded the flight. The authority to detain did not terminate because the surrender warrant issued by the Minister for Justice and Customs (now styled the Minister for Home Affairs) under s 23 of the Extradition Act 1988 (Cth) on 31 August 2006 authorises Mr Rivera’s custody in Australia until he is transported “out of Australia to a place in the United States”. Given that the power of the Minister to issue this warrant and include such a condition is not disputed by Mr Rivera in his application of 28 December 2007, it is uncontentious that the warrant, when issued, represented a lawful authorisation of his custody in Australia. In my view, the provision in the warrant that Mr Rivera’s custody continue until he is transported “to a place in the United States” – which a seat on a commercial airline flight yet to take off patently is not – is sufficient basis on which to hold that the warrant still constitutes lawful authorisation of his custody in Australia.