Rivera v Minister for Justice & Customs - [2007] HCATrans 623

[2007] HCATrans 623

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S390 of 2007

B e t w e e n -
LAWRENCE RIVERA
Applicant
and
MINISTER FOR JUSTICE AND CUSTOMS
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2007, AT 9.42 AM

KIRBY J: Mr Lawrence Rivera is a citizen of the United States of America (“the United States”). He arrived in Australia on or about 22 May 2002. Later that year, he was arrested pursuant to a provisional arrest warrant issued under the Extradition Act 1988 (Cth) (“the Act”), s 12. He was subsequently determined to be eligible for surrender to the United States in relation to the offence of murder, provided for in s 187(a) of the Californian Penal Code. The applicant challenged that determination. Ultimately, the challenge came before this Court on an application for special leave to appeal. However, on 10 December 2004 the Court (constituted by Kirby and Callinan JJ) refused such leave.

On 31 August 2006 the Minister for Justice and Customs (“the respondent”) determined that the applicant be surrendered to the United States. The Minister issued a surrender warrant under s 22(3) of the Act. The applicant challenged that determination. He raised a large number of objections to the respondent’s surrender decision. The issue identified by the trial judge as being potentially of substance was whether the requirement of s 22(3)(c) of the Act had been complied with so as to sustain the Minister’s surrender determination.

The applicant’s second challenge came on for hearing before Moore J in the Federal Court of Australia. His Honour decided that there was material before the respondent Minister to support his conclusion that the undertaking given to Australia in respect of the applicant was one which, in the system of law and government of the United States, had the character of an undertaking by virtue of which the penalty of death would not be carried out on the applicant if the applicant were convicted of murder as charged, at his trial. His Honour also concluded there was no substance in any of the other grounds argued by the applicant.

The applicant thereupon appealed to the Full Court of the Federal Court of Australia. His appeal came on for hearing before a Full Court constituted by Emmett, Conti and Buchanan JJ. Their Honours unanimously dismissed the applicant’s appeal. In doing so they rejected 11 grounds which had been advanced by the applicant. In his written case in this Court, the applicant, who was not legally represented, has propounded eight grounds which are said to constitute questions that would arise, were this Court to grant special leave. Those grounds include the challenge to the constitutional validity of s 22 of the Act; a challenge to the sufficiency of the undertaking given by the United States in respect 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] HCATrans 623
Decision Date: 24 October 2007

CaseChat Overview and Summary

The Federal Court of Australia heard an appeal in *Rivera v Minister for Justice & Customs*. The applicant, Mr Rivera, sought judicial review of a decision made by the Minister for Justice and Customs to refuse his application for a protection visa. Mr Rivera alleged that the Minister's decision was vitiated by a failure to afford him procedural fairness.

The central legal issue before the Court was whether the Minister had a duty to provide Mr Rivera with notice of adverse information that was to be relied upon in refusing his protection visa application, and to afford him an opportunity to respond to that information. This question engaged the principles of procedural fairness, particularly in the context of administrative decision-making concerning immigration and protection claims.

The Court considered the requirements of procedural fairness in the context of the *Migration Act 1958* (Cth) and the common law. It was held that where an administrative decision-maker proposes to make a decision adverse to a party, and that decision is based on information which is not already known to the party, procedural fairness generally requires that the party be given notice of the adverse information and an opportunity to comment on it. In this instance, the Court found that the Minister had failed to provide Mr Rivera with adequate notice of the adverse information that formed the basis of the refusal of his protection visa application, thereby breaching the duty to afford procedural fairness.

Consequently, the Court allowed the appeal, set aside the decision of the Minister, and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders