Santhirarajah v Attorney-General (Cth)

[2012] FCA 940

FEDERAL COURT OF AUSTRALIA

Santhirarajah v Attorney-General for the Commonwealth of Australia
[2012] FCA 940

Citation:

Santhirarajah v Attorney-General for the Commonwealth of Australia [2012] FCA 940

Parties:

THULASITHARAN SANTHIRARAJAH v ATTORNEY-GENERAL FOR THE COMMONWEALTH

File number:

VID 216 of 2012

Judge:

NORTH J

Date of judgment:

31 August 2012

Date of hearing: 

14, 15 and 16 May 2012

Catchwords:

EXTRADITION –  Respondent determined to surrender applicant to United States under s 22(2) of Extradition Act – whether s 22(2) prescribes a time by which the power to make a determination must be exercised – whether determination made when power had ceased to exist

EXTRADITION – Whether respondent erred in forming satisfaction under s 22(3)(a) – Where applicant raised extradition objection – whether offences were political offences – consideration of development of political offence exception – consideration of contemporary meaning of political offence

EXTRADITION – Whether respondent erred in forming satisfaction under s 22(3)(b) that applicant would not be subjected to torture on surrender – where respondent misunderstood obligation of US under Art 3(1) of Convention Against Torture
Whether respondent’s discretion under s 22(3)(f) miscarried – where respondent relied on assurance by US
Whether respondent asked wrong question in considering best interests of child  
Whether applicant denied procedural fairness

ADMINISTRATIVE LAW – Where respondent approved briefing paper from department – where respondent not obliged to provide reasons for determination – whether inference can be drawn from respondent’s approval of briefing paper that respondent adopted its reasoning

Words and Phrases

“Surrender determination”, “as soon as reasonably practicable”, “Extradition objection”,  “Political offence”

Legislation:

Extradition Act 1988 (Cth) ss 5, 7 and 22
Judiciary Act 1903 (Cth) s 39B

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976)  Arts 6 and 7
Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) Art 3
Convention on the Rights of the Child opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Art 3

Cases cited:

Brock v Minister for Home Affairs [2010] FCA 1301 cited
Zentai v Honourable Brendan O'Connor (No 3) (2010) 187 FCR 495 cited
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 distinguished
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 applied
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 referred to
Royal Society for the Prevention of Cruelty to Animals (Victoria) Inc v Marson Constructions Pty Ltd (2000) 1 VR 274 considered
R v Young (1999) 46 NSWLR 681 cited
Re Griffiths [1991] 2 Qd R 29
Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 referred to
Prevato v Governor, Metropolitan Remand Centre and Others (G16 of 1986); Prevato v Miszalski and Another (1986) 8 FCR 38 considered
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 referred to
Dutton v O’Shane (2003) 132 FCR 352 considered
R v Governor of Pentonville Prison; Ex parte Cheng [1973] AC 931 considered
R v Governor of Brixton Prison; Ex parte Kolczynski [1955] 1 QB 540 considered
R v Governor of Brixton Prison; Ex parte Schtraks [1964] AC 556 considered
T v Home Secretary [1996] AC 742 considered
Minister for Immigration and Multicultural Affairs vSingh (2002) 209 CLR 533 considered
In re Castioni [1891] 1 QB 149 considered
In re Meunier [1894] 2 QB 415 considered
Re Wilson; Ex parte Witness T (1976) 135 CLR 179 considered
Re Giovanni Gatti 14 ILR 145 (Ct App Grenoble 1947) considered
Quinn v Robinson 783 F2d 776 (9th Cir 1986) considered
In Re Ezeta 62 F 972 (CCND Cal 1894) considered
Eain v Wilkes 641 F2d 504 (7th Cir 1981) considered
McMullen v Immigration and Naturalization Service 788 F2d 591 (9th Cir 1986) considered
In re Mackin 668 F2d 122 (2d Cir 1981) considered
Barapind v Enomoto 400 F3d 744 (9th Cir 2005) considered
R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (No 2) [1944] HCA 42 (1944) 69 CLR 407 applied
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 cited
Craig v South Australia [1995] HCA 58 applied
Re Refugee Review Tribunal; Ex parte Aala, (2000) 204 CLR 82 cited
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 considered
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 considered
Norris v Government of the United States of America (No 2) [2010] UKSC 9 explained
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 considered
R (on the application of HH) v Westminster City Magistrates’ Court [2011] EWHC 1145 (Admin) considered
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
Attorney-General v Foster (1999) 84 FCR 582 cited
McCrea v Minister for Customs and Justice (2004) 212 ALR 297 applied

Place:

Melbourne

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

345

Counsel for the Applicant:

Ms D Mortimer SC with Mr G Gilbert, Mr M Costello and Mr M Albert

Solicitor for the Applicant:

Galbally & O'Bryan Lawyers

Counsel for the Respondent:

Mr N Robinson SC with Ms L De Ferrari

Solicitor for the Respondent:

Ashurst Australia

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 216 of 2012

BETWEEN:	THULASITHARAN SANTHIRARAJAH Applicant
AND:	ATTORNEY-GENERAL FOR THE COMMONWEALTH Respondent

JUDGE:	NORTH J
DATE OF ORDER:	31 AUGUST 2012
WHERE MADE:	MELBOURNE

THE COURT DECLARES THAT:

1(a)On the proper construction of s 22(2) of the Extradition Act 1988 (Cth) the power to make a determination to surrender a person ceases immediately after the time when it is as soon as is reasonably practicable to make the determination having regard to the circumstances.

(b)It was as soon as reasonably practicable to a make a determination whether to surrender Thulasitharan Santhirarajah, the applicant, having regard to the circumstances in or about November 2009. 

(c)When the Attorney-General for the Commonwealth, the respondent, purported to make a determination to surrender the applicant on 21 February 2012, the power under s 22(2) to do so had ceased to exist.

(d)As a result, the purported determination to surrender the applicant was made without power and is invalid. 

AND THE COURT FURTHER DECLARES THAT:

2(a)The respondent made a jurisdictional error in forming her satisfaction under s 22(3)(a) that there was no extradition objection in relation to the four offences with which the applicant was charged by the United States of America when there was an extradition objection in relation to the offences because they are political offences within the meaning of ss 7(a) and 5 of the Extradition Act 1988 (Cth).

(b)As a result, the purported determination to surrender the applicant was made without power and is invalid.

THE COURT FURTHER DECLARES THAT:

3(a)The respondent made a jurisdictional error in forming her satisfaction under s 22(3)(b) of the Extradition Act 1988 (Cth) that the Applicant will not be subjected to torture in that the Attorney-General misunderstood that the legal obligation undertaken by the US under Art 3 of the Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment was different from the legal obligation undertaken by Australia.

(b)As a result, the purported determination to surrender the applicant was made without power and is invalid.

AND THE COURT FURTHER DECLARES THAT:

4(a)The respondent made a jurisdictional error in exercising her general discretion under s 22(3)(f) of the Extradition Act 1988 (Cth) by relying on the undertaking given by the United States of America to give 30 days notice to Australia of an intention to remove the applicant from the United States of America when that assurance was not capable of justifying the conclusion that Australia would comply with its obligation under Arts 6 and 7 of the International Covenant on Civil and Political Rights.

(b)As a result, the purported determination to surrender the applicant was made without power and is invalid. 

AND THE COURT FURTHER DECLARES THAT:

5(a)The respondent made a jurisdictional error in the exercise of her general discretion under s 22(3)(f) of the Extradition Act 1988 (Cth) by asking the wrong question in considering the best interests of the applicant’s son.

(b)As a result, the purported determination to surrender the applicant was made without power and is invalid.

AND THE COURT FURTHER DECLARES THAT:

6(a)The respondent made a jurisdictional error in making her purported determination to surrender the applicant by denying him procedural fairness in that she failed to inform him of the negotiation of and proposal to accept assurances from the United States of America to protect him from the danger of torture and/or cruel, inhuman, or degrading treatment if returned to Sri Lanka.

(b)As a result, the determination to surrender the applicant was made without power and is invalid. 

AND THE COURT ORDERS THAT:

7.Any application for further orders consequential on the making of the declarations is listed for hearing at 3 pm on Monday 3 September 2012.

8.The respondent to pay the applicant’s costs of the proceeding.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 216 of 2012

BETWEEN:	THULASITHARAN SANTHIRARAJAH Applicant
AND:	ATTORNEY-GENERAL FOR THE COMMONWEALTH Respondent

JUDGE:	NORTH J
DATE:	31 AUGUST 2012
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[1]
JURISDICTION AND RELIEF SOUGHT........ ........ ........ ........ ........ ........ ........ ........	[3]
THE EXTRADITION PROCESS FROM JULY 2008 UNTIL FEBRUARY 2012........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[6]
THE RELEVANT LEGISLATIVE PROVISIONS........ ........ ........ ........ ........ ........ ..	[15]
THE GROUNDS OF THE APPLICATION........ ........ ........ ........ ........ ........ ........ ......	[19]
ISSUES CONCERNING THE EVIDENCE BEFORE THE COURT........ ........ ...	[21]
THE POWER TO DETERMINE ISSUE........ ........ ........ ........ ........ ........ ........ ........ ...	[31]
The Applicant’s Submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[31]
The Construction Question........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[32]
The Issue of Fact........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[48]
The Attorney-General’s Submissions........ ........ ........ ........ ........ ........ ........ ........ .......	[64]
The Construction Question........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[64]
The Issue of Fact........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[69]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[73]
The Construction Question........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[73]
The Issue of Fact........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[81]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[94]
THE POLITICAL EXCEPTION ISSUE........ ........ ........ ........ ........ ........ ........ ........ ...	[95]
Introduction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[95]
The Legal Advice........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[97]
Submissions of the Applicant........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[110]
Submissions of the Attorney-General........ ........ ........ ........ ........ ........ ........ ........ .......	[122]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[131]
Introduction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[131]
Is there a test to determine whether an offence is political?........ ........ ........ ........ ...	[134]
The UK and Australian Authorities........ ........ ........ ........ ........ ........ ........ ........ ........	[148]
The political offence exception in other jurisdictions........ ........ ........ ........ ........ .....	[204]
The Reason there is no Definition of Political Offence........ ........ ........ ........ ........ ..	[221]
The Rationale behind the Political Offence Exception........ ........ ........ ........ ........ ..	[226]
Legislative History in Australia........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[228]
The Contemporary Meaning........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[240]
The Present Case........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[251]
Did the Attorney-General make a jurisdictional error?........ ........ ........ ........ ........ ..	[258]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[262]
THE TORTURE ISSUE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[263]
The Applicant’s Submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[263]
The Attorney-General’s Submissions........ ........ ........ ........ ........ ........ ........ ........ .......	[276]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[278]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[283]
THE 30-DAY ASSURANCE ISSUE........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[284]
The Applicant’s Submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[284]
The Attorney-General’s Submissions........ ........ ........ ........ ........ ........ ........ ........ .......	[288]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[289]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[292]
THE BEST INTERESTS OF THE CHILD ISSUE........ ........ ........ ........ ........ ........ ...	[297]
The Legal Advice........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[298]
The Applicant’s Submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[309]
The Attorney-General’s Submissions........ ........ ........ ........ ........ ........ ........ ........ .......	[313]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[315]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[321]
PROCEDURAL FAIRNESS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[324]
The Applicant’s Submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[324]
The Respondent’s Submissions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[334]
Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[338]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[342]
DISPOSITION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[343]

INTRODUCTION

1. On 21 February 2012, the respondent, the Attorney-General for the Commonwealth, made a determination under s 22(2) of the Extradition Act 1988 (Cth) (the Act) to surrender the applicant, Thulasitharan Santhirarajah, who is often referred to in the documents as Mr Santhirajah, to the United States of America. At the same time the Attorney-General issued a warrant under s 23 of the Act for the surrender of the applicant to the US.

2. The applicant is a Sri Lankan citizen.  The US requested Australia to surrender the applicant to answer charges that he was involved in a conspiracy to export military weapons from the US.  The weapons were to be acquired for the Liberation Tigers of Tamil Eelam (LTTE) to be used in the ongoing war against the government of Sri Lanka in support of a claim for a separate Tamil state.  US law designated the LTTE as a terrorist organisation and prohibited the provision of material assistance to the organisation. 

   JURISDICTION AND RELIEF SOUGHT

3. The application is brought under s 39B of the Judiciary Act 1903 (Cth). The applicant seeks an order in the nature of certiorari quashing the determination to surrender.

4. He also seeks an order in the nature of prohibition preventing the Attorney-General from executing the surrender warrant, or an order permanently staying the surrender warrant. 

5. Further, the applicant seeks declarations that the determination to surrender was not authorised by the Act, that the surrender warrant is invalid and of no effect, that the Attorney-General is required to direct the release of the applicant, that the warrant of imprisonment under s 19(9) of the Act be permanently stayed, and that the applicant’s detention from 5 August 2010 was unlawful. 

   THE EXTRADITION PROCESS FROM JULY 2008 UNTIL FEBRUARY 2012

1. A concerning aspect of this case is that the applicant has been in detention for more than four years since the first steps were taken against him under the Act.  A short description of those actions will now be set out, but, so far as is necessary, they will be more fully considered in relation to specific grounds of the application later in these reasons.

2. On 11 July 2008, the US made a provisional request to Australia for the extradition of the applicant for six offences against US law.

3. On 14 July 2008, the applicant was provisionally arrested in Australia in response to the request of the US and remanded in custody pending receipt of a formal extradition request.

4. On 5 September 2008, the US presented a formal extradition request, and on 10 September 2008, the Attorney-General signed a notice under s 16 of the Act stating that a formal request for the extradition of the applicant had been received from the US. 

5. Then, on various dates between 24 February 2009 and 12 May 2009, a Victorian magistrate, Mr B FitzGerald, conducted a hearing under s 19 of the Act to determine whether the applicant was eligible for surrender in relation to the six offences. 

6. On 10 June 2009, the magistrate found that the applicant was eligible for surrender for four of the six offences. 

7. The applicant decided not to challenge the s 19 decision of the magistrate.  He waited from 10 June 2009 for a decision from the Attorney-General whether to surrender him to the US.  

8. At that time, and for the next two and a half years, Mr Robert McClelland was the Attorney-General.  On 14 December 2011, the present Attorney-General, Ms Nicola Roxon, took office.     

9. The applicant sent written submissions and other correspondence to the Attorney-General on or about 17 July 2009, 24 July 2009, 7 August 2009, 2 September 2009, 26 February 2010, 1 April 2010 and 12 August 2011. Through this correspondence, the applicant repeatedly sought an indication of when the surrender determination would be made.  In the absence of a decision from the Attorney-General, on 14 December 2011, the applicant filed an application for mandamus to compel the Attorney-General to make a determination whether to surrender the applicant to the US.  Within that proceeding, an application for interlocutory release was to be heard by the Court on 22 February 2012.  However, on the day before the anticipated hearing, the recently appointed and present Attorney-General determined to surrender the applicant.  The mandamus proceeding was then discontinued, and this proceeding challenging the determination to surrender was filed by the applicant. 

   THE RELEVANT LEGISLATIVE PROVISIONS

10. Section 22(2) of the Act provides:

    The Attorney General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.
    (Emphasis added)

11. Section 22(3)(a), (b) and (f) of the Act provides:

    For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:

    (a)the Attorney General is satisfied that there is no extradition objection in relation to the offence;

    (b)the Attorney General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture;

    …

    (f)the Attorney General, in his or her discretion, considers that the person should be surrendered in relation to the offence.

    (Emphasis added)

12. Section 7(a) of the Act provides:

    For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:

    (a)the extradition offence is a political offence in relation to the extradition country;

    (Emphasis added)

13. Section 5 provides the following definition:

    political offence, in relation to a country, means an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country), but does not include:

    Then follows a list of offences which is set out later in these reasons at [237]. These offences are thus expressly excluded from being regarded as political offences.

    THE GROUNDS OF THE APPLICATION

14. The applicant contends that the Attorney-General fell into jurisdictional error by:

    a.making the determination after the time when, under s 22(2), it was “as soon as is reasonably practicable” to do so. On the proper construction of s 22(2) there was no power to make the determination to surrender the applicant after that time.

    This ground will be referred to as the power to determine issue.

    b.forming her satisfaction under s 22(3)(a) that there was no extradition objection in relation to the four offences when there was an extradition objection in relation to the offences because they are political offences within the meaning of ss 7(a) and 5.

    This ground will be referred to as the political offence exception issue. 

    c.forming her satisfaction under s 22(3)(b) that the applicant will not be subjected to torture in that she misunderstood that the obligation of the US under Art 3 of the United Nations Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was different from the obligation undertaken by Australia. 

    This ground will be referred to as the torture issue.

    d.relying, in the exercise of her general discretion under s 22(3)(f), on the assurance given by the US that it would give Australia 30 days notice of the applicant’s removal when that assurance did not address the dangers of torture and/or cruel, inhuman or degrading treatment or punishment faced by the applicant.

    This ground will be referred to as the 30-day assurance issue.

    e.asking the wrong question in considering the best interests of the applicant’s son in the exercise of her general discretion under s 22(3)(f).

    This ground will be referred to as the best interests of the child issue. 

    f.denying the applicant procedural fairness. 

    This ground will be referred to as the procedural fairness issue. 

15. After explaining some matters concerning the evidence which was before the Court on the application, each of these grounds will be addressed.

    ISSUES CONCERNING THE EVIDENCE BEFORE THE COURT

16. Two affidavits sworn, one on 7 March 2012 and the other on 2 May 2012, by Marie Costa, the solicitor for the applicant, were filed on behalf of the applicant.  The affidavits mainly annex documents relied upon by the applicant which were disclosed by the Attorney-General to the applicant in compliance with orders for discovery made by the Court. 

17. An affidavit affirmed on 11 May 2012, by Anastasia Harmer, Assistant Secretary of the International Crime Cooperation Central Authority in the Attorney-General’s Department (the Department), was filed on behalf of the Attorney-General.  

18. Two issues arise from the annexures to Ms Costa’s second affidavit.  Each of these issues will be dealt with later in these reasons in connection with the ground to which it relates.

19. One issue is an objection by the Attorney-General to the use of certain documents on the ground that the particular document is not relevant to any issue before the Court because it was not before the Attorney-General when she made the determination to surrender. 

20. The other issue concerns annexure MAC12, which is one of the discovered documents referred to in [21] above.  It is a briefing paper dated 15 February 2012, prepared by the Department.  The briefing paper has an introductory page and nine attachments.  Attachment E is a 53 page legal advice (the legal advice) explaining the Department’s view of the legal issues to be addressed by the Attorney-General.  On the single introductory page, which outlines the facts in a general way, there is a paragraph referring to the Departmental advice as follows:

    Attachment E. The Department considers that it is open to you to be satisfied that the requirements of section 22 for surrendering Mr Santhirajah to the US are met and that you may consider that Mr Santhirajah should be surrendered to the US for the extradition offences.

21. At the foot of the introductory page the author, Ms Harmer, wrote under the heading “Recommendation”:

    I recommend that:

    (i)       you read the advice at Attachment E and determine under subsection 22(2) of the Act that Thulasitharan Santhirajah be surrendered to the US;

22. Immediately beneath the recommendation, the document provides the Attorney-General with three options, namely, “Approved / Not Approved / Discuss”.  The Attorney-General has circled the word “Approved” and signed and dated the page where provided. 

23. On 21 February 2012, when the Attorney-General made the determination to surrender the applicant, and also a few days later, the solicitor for the applicant requested that the Attorney-General provide reasons for her determination to surrender the applicant. Ms Harmer responded, first on 21 February 2012, by observing that s 13 of the Administrative Decisions Judicial Review Act 1977 (Cth), which permits a person to request reasons for an administrative decision, does not apply to the determination to surrender by virtue of the operation of paragraph r of sch 1 of that Act. Then, in a letter dated 27 February 2012, Ms Harmer advised the solicitors for the applicant that the Attorney-General was not obliged by any statute or the common law to provide reasons for her determination to surrender the applicant, and that the practice of the Attorney-General was not to provide detailed reasons for her decision.

24. The issue which arises is whether the Court can infer that the briefing paper, and in particular, the reasoning in the legal advice, represents the reasoning of the Attorney-General. The applicant contended that the Attorney-General’s approval of the legal advice, in the absence of evidence that it was questioned or discussed, supported an inference that the recommendations and reasons it contained had been wholly accepted.  This follows from the circumstance that the briefing paper was discovered pursuant to orders of the Court made on 15 March 2012 which required the Attorney-General to disclose all material on which she had made her decision.  It was common ground that the inference to be drawn was a question of fact: Brock v Minister for Home Affairs [2010] FCA 1301 (Foster J at [73]); Zentai v Honourable Brendan O'Connor (No 3) (2010) 187 FCR 495; [2010] FCA 691 at [92]

25. Because any inference depends upon the contents of the advice which are considered in detail in respect of each ground, that question will be addressed in the context of the particular grounds to which it relates.

    THE POWER TO DETERMINE ISSUE

    The Applicant’s Submissions

26. This issue involves a question as to the proper construction of the phrase “shall, as soon as is reasonably practicable, having regard to the circumstances…determine” as used in s 22(2). On the applicant’s argument the issue also raises a question of fact, namely, whether the Attorney-General made the determination as soon as was reasonably practicable having regard to the circumstances.

    The Construction Question

27. The applicant submitted that the phrase “shall, as soon as is reasonably practicable, having regard to the circumstances” in s 22(2) prescribes a time by which the power conferred by that section must be exercised. In order to determine the consequences of a failure to exercise the power within that time the Court must consider the purpose of the provisions, having regard to the language of the section and the scope and object of the Act: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [93]. Applying that approach, the section should be construed to mean that compliance with the time prescribed is a condition of the exercise of the power. The time limitation constrains the way in which the power must be exercised. Consequently, so it was submitted, if a determination is not made at the prescribed time then the power to make a determination ceases. The power cannot be exercised after the time when it was as soon as was reasonably practicable having regard to the circumstances.

28. The power in s 22(2) is an example of the type of authority described by Brennan CJ in Project Blue Sky at [34]:

    …The authority conferred on the repository of a general power cannot be exercised in conflict with a provision which governs the manner of its exercise; the constraint on the exercise of the power defines the ambit of the power granted.  A purported exercise of a power in breach of the provision which governs the manner of its exercise is invalid, since there is no power to support it. 
    (Footnotes omitted)

29. The applicant referred to an example of such a construction in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43. The provision under consideration in that case was s 459G(1) of the Corporations Law which provided that an application to set aside a statutory demand served on a company “may only be made within 21 days after the demand is so served”.  Gummow J (with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed) said at 277:

    Here, the phrase “[a]n application may only be made within 21 days” should be read as a whole.  The force of the term “may only” is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. 

30. The applicant also argued that by reason of the delay the Attorney-General had abdicated or abandoned the exercise of the power to make a determination.  Counsel relied on the following statement made by Gummow J in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 at [41] (NAIS):

    Delay may be such as to show that there has been an abdication or abandonment of the statutory function to proceed in the matter. 

31. This argument seems conceptually different from the argument that the power is conditioned upon exercise at a particular time.  This argument was not developed and it is not, at first sight, clear how it applies to the circumstances of this case. 

32. The applicant also contended that the time when it was as soon as reasonably practicable to exercise the power must be assessed objectively.  The phrase “having regard to the circumstances” is a reference to the circumstances assessed objectively.  The Attorney-General cannot delay a determination simply because it suits her to make the determination later, if, objectively assessed, there was an earlier time at which it was as soon as reasonably practicable to make the determination.  The applicant relied on the judgment of Tadgell JA (with whom Ormiston JA agreed) in Royal Society for the Prevention of Cruelty to Animals (Victoria) Inc v Marson Constructions Pty Ltd (2000) 1 VR 274 (RSPCA v Marson Constructions), where it was said at [5] in relation to an arbitration clause in a building contract:

    I cannot agree in any event that an obligation such as that imposed by the arbitration clause to take a step as soon as reasonably practicable contemplates that the step may be taken as soon as may be reasonably practicable for the convenience of the person bearing the obligation.

33. The applicant contended that this construction reflects the purpose of the Act.  The process of extradition under the Act affects the liberty of the person and, where a person is surrendered, the operation of the Act results in an alteration in the course of the person’s life.  A construction should be adopted which limits the restriction on the liberty of the person and the intrusion into the course of the person’s life. 

34. The applicant argued that the intention of Parliament to limit the restriction on the liberty of a person sought for extradition is demonstrated by the limited periods of time stipulated by the Act for the taking of steps in the extradition process.  Further, where expressions similar to the expression under consideration are used, the context shows that the period in mind is short.  Thus, at the start of the process where a person is arrested under a provisional arrest warrant that person must be brought before a magistrate as soon as practicable (s 15(1)).  This, it was said, would not be intended to refer to a period of years.  The process commences with the requirement of swift action. 

35. Section 16(3) then provides that as soon as practicable after a person is remanded under s 15 or a notice is given by the Attorney-General stating that an extradition request in relation to the person has been received, whichever is later, the person is to be provided with a copy of the notice and supporting documents such as the arrest warrant or proof of conviction.

36. Further, unless the period is modified under the regulations, a person remanded in custody for 45 days and in relation to whom a notice under s 16(1) has not been given by the Attorney-General must be brought back before a magistrate to consider whether the person should be released (s 17(2)).

37. The magistrate must give the parties a reasonable time to prepare for the hearing under s 19 which is held to determine whether the person is eligible for surrender (s 19(1)(d)).

38. Any review of the magistrate’s order must be made within 15 days after the date of the order (s 21(1)).  No appeal from the review may be made more than 15 days after the date on which the order concluding the review is made (s 21(4)), and no grant of special leave to appeal may be given by the High Court if the application is made more than 15 days after the judgment on appeal. 

39. The next step in the process is the Attorney-General’s consideration whether to surrender the person. It is here that the limit prescribed by s 22(2) presently under consideration operates.

40. Finally, where a surrender warrant is issued in relation to a person and that person, having been held in custody for more than two months under the warrant applies to this Court or the Supreme Court of the State or Territory in which they are detained, the Court must order that person’s release from custody unless there is reasonable cause to continue the detention (s 26(5)). 

41. The applicant contended that this review of the statutory scheme, of which s 22 is part, demonstrates that when each stage of the extradition process is completed the next stage is engaged without delay.

42. The applicant then argued that the construction of s 22(2) urged by the Attorney-General does not reflect the purpose of the section having regard to the language of the section and the scope and object of the Act. The Attorney-General’s construction postulates that the phrase in question establishes the time from which mandamus becomes available to a person to bring proceedings in court to enforce the duty of the Attorney-General to make a determination. Counsel for the applicant observed that in order to bring mandamus proceedings people held in custody need to know of the right to bring the proceeding, have contact with lawyers to represent them, and have funds to engage that professional assistance. The circumstances which result in people being in custody mean that often they will not have the knowledge or means to bring mandamus proceedings. Consequently, in the applicant’s submission, it is more likely that the power to surrender was intended to cease if not exercised as soon as was reasonably practicable having regard to the circumstances.

    The Issue of Fact

43. The applicant contended that the following facts established that the Attorney-General did not make the determination as soon as was reasonably practicable having regard to the circumstances. 

1. On 11 June 2009, which was the day after the magistrate remanded the applicant following the s 19 hearing, the Department wrote to the applicant setting out his right to apply for a review of the magistrate’s decision.  That letter also stated that, if no review was instituted, then, by 3 July 2009, the applicant was to provide any representations to the Attorney-General explaining why the applicant should not be surrendered.  On 16 June 2009, the solicitors for the applicant wrote back complaining about the shortness of time allowed to provide representations.  On 26 June 2009, the applicant’s solicitors notified the Department that the applicant would not be instituting a review of the magistrate’s decision, and they reiterated their complaint about the short period of time to provide representations to the Attorney-General.  They asked for six weeks in which to make those representations.  The Department replied on the same date, in part saying:

   Section 22(2) of the Extradition 1988 (Cth) Act requires the Attorney-General to determine whether a person is to be surrendered as soon as is reasonably practicable.  You have not provided any reasons why you consider an additional six weeks is required to make representations.  In these circumstances, and given that your client has been in custody since 14 July 2008, any representations should be provided by close of business Friday 17 July 2009; that is three weeks from today.  

2. On 17 July 2009, the applicant’s solicitors forwarded to the Department a lengthy written submission together with a statement from the applicant’s wife. The written submission stated that if the applicant was returned to Sri Lanka by the US he would be subjected to torture. Consequently, the Attorney-General could not be satisfied as required by s 22(3)(b) that he would not be subjected to torture and could not determine to surrender him to the US. On 24 July 2009 and 7 August 2009, further material was provided by the applicant’s solicitors to the Department, including an ongoing petition from members of the Tamil community in Australia in support of the applicant. The remainder of the petition was forwarded to the Department on 2 September 2009, together with a statement of the applicant and submissions in support of that statement.

3. On 10 August 2009, and again on 10 September 2009, the Department wrote to the US Department of Justice and apparently raised the claimed danger of torture faced by the applicant if he were returned to Sri Lanka.  The US Department of Justice sent a reply dated 14 September 2009 which included:

   I hope that this response provides adequate assurance that Mr. Santhirajah will be afforded all protections provided under the laws of the United States should he be extradited as ordered.

   First, Mr. Santhirajah contends that should he be extradited to the United States to stand trial on the charges brought against him, he will ultimately be sent back to Sri Lanka, where he will be subject to torture and reprisal.  This contention is speculative at best.  There has been no indication from Sri Lankan authorities to date of any interest in Mr. Santhirajah.  The hostilities between the Sri Lankan government and the Liberation of Tigers of Tamil Eelam (sic) (“LTTE”) have ended, and a period of reconciliation has begun.  Mr. Santhirajah, if he is brought to the United States, faces a lengthy sentence of incarceration should he be convicted.  He would not be deported until the completion of his sentence.  Should he be acquitted, his return to Sri Lanka would occur much sooner. 

   Prior to any deportation from the United States to Sri Lanka, Mr. Santhirajah would be afforded administrative review of his status.  The regulations governing administrative review of alien removal proceedings is found in 8 U.S.C. Section 1228 of the Immigration and Naturalization Act (INA).  Among the rights afforded an individual pending removal is an opportunity to present evidence of ‘credible fear.”  Mr. Santhirajah would be permitted an opportunity to establish that he would be subjected to torture if returned to Sri Lanka.  If he establishes a valid claim of “credible fear,” his removal from the United States could be deferred under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”) and Section 241(b)(3) of the INA.  Mr. Santhirajah would also have the opportunity to seek permission from a country other than Sri Lanka to accept him after he is deported from the United States. 

   In summary, there exist safeguards and due process rights within the deportation process to protect aliens subject to removal from the United States.  Mr. Santhirajah will be afforded these protections if he is extradited to the United States as requested.  His concerns would be fairly adjudicated before he is subject to deportation after his case and/or sentence has been completed.

4. In the submission dated 17 July 2009, the applicant’s solicitors also referred to Australia’s obligation under Art 6 and Art 7 of the International Covenant on Civil and Political Rights 1966 (ICCPR) which respectively provide that every human being has a right to life and no person shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.  On 9 November 2009, the US Department of State advised the Department that the US did not regard the ICCPR as creating any non-refoulement obligation on the US.    

5. In March 2010, on advice from his Department, the Attorney-General wrote to, Senator Evans, who was then the Minister for Immigration and Citizenship, in the following terms:

   …Santhirarajah has made detailed representations to me as to why he should not be surrendered to the United States.  In particular, Santhirarajah submits that if he is surrendered to the US, he will eventually be deported to Sri Lanka, as he has no right of entry to the US or Australia.  Santhirarajah argues that Australia has a non-refoulement obligation not to surrender him to the US, as he will face a real risk of torture (contrary to Article 3 of the Convention Against Torture), as well as a risk of cruel, inhuman and degrading treatment (contrary to Articles 6 and 7 of the International Covenant on Civil and Political Rights) upon his eventual deportation to Sri Lanka.

   Australia’s non-refoulement obligations extend to considering the risk of impermissible treatment in any State to which Santhirarajah may subsequently be expelled, returned or extradited from the US. ----------------------------------------------------------------------------------------------------- Santhirarajah’s representations raise an issue which may preclude his surrender under section 22 of the Extradition Act. It is therefore necessary to address this issue prior to my determination as to whether to surrender Santhirarajah to the United States.

   -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------  I am seeking your agreement on the text of this assurance as any decision regarding an appropriate visa on which Santhirarajah will be able to re-enter Australia will rest with the Minister for Immigration and Citizenship. 
   (Redacted in the copy in evidence)

6. On 5 August 2010, Senator Evans agreed with the proposal suggested by the Attorney-General.  The text of the draft assurance agreed to by Senator Evans was redacted in the material before the Court.

7. It seems that on 9 September 2011, the US provided a diplomatic note assuring Australia that the US would fully comply with any applicable US international legal obligations, including the obligation under Art 3 of the CAT not to return a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture. 

8. On 14 December 2011, the applicant filed an application for mandamus to compel the Attorney-General to make a determination under s 22(2). An application for interlocutory relief in that proceeding, including a claim for release from custody, was fixed for hearing for 22 February 2012.

9. On 1 February 2012, the US agreed to provide a further assurance (the 30-day assurance), the terms of which were set out in a departmental advice dated 3 February 2012 as follows:

   [T]he United States assures Australia that it will notify Australia when the United States files a charging document in immigration court, to initiate immigration proceedings, with respect to Mr. Santhirajah.  Further, upon entry of a final order of removal for Mr. Santhirajah, the United States will request that Australia accept Mr. Santhirajah’s return to Australia.  The United States will afford Australia a period of 30 days in which to consider whether Australia will accept Mr. Santhirajah’s return to Australia.  If Australia agrees to accept Mr Santhirajah’s return within that time period, the United States will return Mr Santhirajah to Australia.  If Australia does not provide a response by the conclusion of the 30-day period, the United States will take Australia’s silence as a refusal to accept Mr. Santhirajah’s return to Australia.

10. This assurance was conditional upon Australia providing a reciprocal assurance the terms of which were also set out in that departmental advice as follows:

    Australia assures the United States that, upon notification by the United States of a final order of removal with respect to Mr. Santhirajah, Australia will determine within 30 days whether or not to accept Mr Santhirajah’s return.  Australia understands that it will make a determination of whether or not to accept Mr Santhirajah without the United States stating whether Mr. Santhirajah sought or obtained protection or relief from removal, to any country, in U.S. immigration court.

11. The written advice provided by the Department to the Attorney-General on 3 February 2012 recommended that she agree to the exchange of the proposed assurances. The advice also recommended that the Attorney-General undertake to the Court at the forthcoming interlocutory hearing in the mandamus proceeding that she would make a determination under s 22(2) by 21 March 2012, that is, four weeks after the date of the proposed interlocutory hearing. The Attorney-General accepted that advice. Having taken up office on 14 December 2011, the present Attorney-General, not surprisingly, wrote on the departmental advice “Given this case is complex and has been running for over three years, I don’t appreciate being told it is now urgent. Please ensure significant assessment time for the final submissions”.

12. On about 15 February 2012, the Department provided the Attorney-General with the legal advice which she accepted on 21 February 2012, and which was the basis for her determination under s 22 made on that day.

13. Against that background of events, the applicant contended that 5 August 2010 was the time when it was as soon as was reasonably practicable to make the determination.  This was the date on which Senator Evans agreed that his Department would entertain any request by the US that Australia accept the applicant back from the US either at the end of any period of imprisonment if he were convicted and imprisoned, or, earlier, if he were acquitted. 

14. The applicant contended, alternatively, that 9 September 2011 was the time when it was as soon as was reasonably practicable to make the determination.  This was the date when the US provided the note assuring Australia that it would honour its international legal obligations including under Art 3 of the CAT.  Indeed, the US had indicated this same position as early as 14 September 2009 when it wrote to the Department outlining the immigration process which would apply to the applicant.

15. Then, in reply, the applicant argued that where there is unreasonable delay in the process leading to the making of a determination it cannot be said that the determination was made as soon as was reasonably practicable. In September 2009, it was known that the US would comply with its obligations under the CAT, and by November 2009, it was known that the US disclaimed any non-refoulement obligation under the ICCPR. Despite this knowledge the agreement of Senator Evans was not sought until March 2010. There was no evidence that the Department had pressed the Department of Immigration and Citizenship for a response to its letter before the reply was received in August 2010. It was argued that the delay between November 2009 and August 2010 was unreasonable. The applicant compared that period of time with the 30-day period in which Australia would, in accordance with its assurance to the US, respond to any request by the US to admit the applicant into Australia. The delay also stood in contrast to the speed with which the determination was made in the face of the impending interlocutory application in the mandamus proceeding scheduled for 22 February 2012. Seen against the capacity to act expeditiously in those circumstances, the delay in making the determination under s 22(2) demonstrates that it was not made as soon as was reasonably practicable having regard to the circumstances of this case.

    The Attorney-General’s Submissions

    The Construction Question

16. The Attorney-General submitted that the power to make a determination under s 22(2) does not cease after the time when it was as soon as was reasonably practicable having regard to the circumstances to make the determination. After that point, a determination may be made at any time. The power to do so remains. If the power is not exercised after that time, an application for mandamus is available to enforce the exercise of the power.

17. The Attorney-General argued that the applicant’s construction requires the Court to read into s 22 a further provision such as:

    If, as a matter of fact at a particular time, it had become reasonably practicable, having regard to the circumstances, to make a determination whether to surrender the person, and the Attorney-General had not made a determination, the Attorney-General is taken to have made a determination not to surrender the person.

18. The Court, it was said, should not read words into the provision.  The task of the courts is to ascertain what Parliament meant by the words it used, not to determine what Parliament intended to say: R v Young (1999) 46 NSWLR 681 per Spigelman CJ at [5].

19. Further, the Attorney-General contended that the applicant’s construction would frustrate one purpose of the Act, namely, to give effect to Australia’s obligations under extradition treaties.

20. The Attorney-General submitted that what Gummow J said in NAIS does not assist the applicant because his Honour postulated that mandamus would be available in cases where a power had been abdicated or abandoned.  Further, in Engineers’ and Managers’ Association v Advisory, Conciliation and Arbitration Service(No 2) [1980] 1 All ER 896; [1980] WLR 302 to which Gummow J referred, the House of Lords made declarations which assumed the continued existence of the power.

    The Issue of Fact

21. If, contrary to the Attorney-General’s construction, it is necessary to establish that the determination was made as soon as was reasonably practicable having regard to the circumstances, then the Attorney-General contended that it only became reasonably practicable for her to make the determination when she received the briefing paper from the Department following the exchange of reciprocal assurances which occurred on 10 February 2012.

22. The circumstances in which Australia and the US agreed to reciprocal assurances were set out in the 3 February 2012 advice from the Department which sought the agreement of the Attorney-General to the reciprocal assurances as follows:

    4.        …On 1 February 2012 officer-level discussions concluded on a formula for diplomatic assurances which ensure Australia would be afforded an opportunity to assess its obligations to Mr Santhirajah at the conclusion of the US criminal process while remaining compatible with US immigration processes.  If the US gave Australia an assurance in the terms proposed, it would enable you to be satisfied the (sic) Mr Santhirajah’s surrender would not be in breach of Australia’s international law obligations and facilitate your consideration of the substantive extradition issue.

    5.        It has not been possible to finalise the matter for your consideration earlier due to the non-refoulement issues noted above.  If you agree to the exchange of the proposed diplomatic assurances, the Department anticipates that the exchange of the assurances may be completed by 8 February 2012. 

23. Counsel for Attorney-General also relied on the assertion in Ms Harmer’s affidavit that “the respondent was not in a position to make a decision prior to receipt of advice from the Department”.  That advice was received on 15 February 2012.  

24. In order to demonstrate the reason for the delay Ms Harmer also listed approximately 150 communications between the US and Australia between 10 August 2009 and 14 February 2012 in respect of the determination to surrender the applicant.  Public interest immunity was claimed over the substance of these listed communications. 

    Consideration

    The Construction Question

25. It must be acknowledged that the contending constructions of the phrase “shall, as soon as is reasonably practicable, having regard to the circumstances…determine”, raise a finely balanced question. In the end, the preferable construction is that advanced by the applicant, namely, that once the time stipulated by the section has passed, the Attorney-General no longer has the power to surrender a person under s 22(2).

26. The starting point for the consideration of the construction is the ordinary and natural meaning of the language of the section.  There are four elements in the expression of the section which point to a meaning that if the power is not exercised within time it ceases to exist.  First, the section specifies a time limitation.  Second, that limitation is expressed emphatically – “as soon as”.  Third, the limitation is provided with a degree of flexibility – “reasonably practicable”.  By providing the Attorney-General with some leeway, this element suggests that the power is intended to be exercised without delay once circumstances, objectively assessed, render it reasonably practicable to do so.  Finally, the word “shall” construed in the context of the Act, ought to be given its ordinary prescriptive meaning.  As Byrne J said in Re Griffiths [1991] 2 Qd R 29, at 33:

    In legislation, “shall” ordinarily signifies must. But like all words, its meaning takes colour from its context.  A general disposition in favour of construing “shall” as obligatory cannot prevail over other considerations plainly evidencing a contrary legislative intent.

    The purpose, scope and object of the Act discussed below at [76] support the view that “shall” is used to oblige the Attorney-General to exercise the power within the stipulated time and at no other time.   

27. Contrary to the Attorney-General’s submission, this construction does not depend on adding words to the section to the effect that, after the expiration of the period stipulated, the power may not be exercised. Rather, the construction advocated by the Attorney-General would require the addition of words such as “failure to comply with the time limit does not invalidate any exercise of the power to surrender”. Such saving clauses are not uncommon, but no such clause is included in this section. An example of such a saving clause is found in s 175 of the Income Tax Assessment Act 1936 (Cth) which was considered in Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 and which provides:

    The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.

28. The purpose, scope and object of the Act also support the construction of s 22(2) advanced by the applicant. The extradition process intrudes into the life and liberty of people sought for surrender. The applicant’s submissions highlight the attempts made in the Act to ensure the process is speedy. One purpose of this approach is to provide a reasonable limit on the intrusion into the life and liberty of people sought for surrender. In respect of an earlier form of s 21 which limited the time for commencement to apply for of a review of a decision of a magistrate on eligibility under s 19 to 15 days, Wilcox J in Prevato v Governor, Metropolitan Remand Centre and Others (G16 of 1986); Prevato v Miszalski and Another (1986) 8 FCR 38 (Prevato) said at 363:

    ...there is no provision in the section for any extension of the period of 15 days allowed for the making of an application for review.  The reason, no doubt, was that it was thought desirable to enable an early decision by the Attorney-General upon the question of surrender and, if the decision was to surrender, prompt surrender.  Speed is desirable; in the interests both of the fugitive, who is being held in some form of custody pending a decision and who yet may not be surrendered or may be acquitted of the relevant charge or charges, and of the administration of justice in the requesting State.  But the absence of any provision for extension of the relatively short time allowed for the making of an application for review throws a particular responsibility upon those acting on behalf of the fugitive to ensure that any application for review is made in time. 
    (Emphasis added)

1. The requirement that the Attorney-General exercise the power to surrender in a timely way, on the pain of losing the power, provides a strong incentive to the Attorney-General to act in accordance with the aim of providing a speedy process.

2. Of course, the Act has more than one purpose. It also aims to promote compliance with Australia’s extradition relationships with other states in order to ensure that criminal conduct subject to the jurisdiction of the requesting state is dealt with under the processes of that state. The Attorney-General argued that this purpose is weakened if the power to surrender ceases to exist after the timeframe limit specified in s 22(2) has passed. On the construction advocated by the Attorney-General, the time “as soon as is reasonably practicable, having regard to the circumstances” marks the moment from which the Attorney-General has a duty to make the determination and from which time mandamus will lie to enforce that duty at the suit of the person sought. In that way, so it was said, the rights of people sought for surrender are protected whilst the purpose of cooperating in countering criminal conduct is also served.

3. There is force in that argument, but the answer given to it by the applicant should be accepted.  The person seeking mandamus must first have the knowledge that there is a way to secure legal redress.  In a typical situation, potential applicants will be strangers to the Australian legal system.  They will normally be on remand with the attendant difficulty of seeking out and obtaining legal representation.  Then, they will require funds to retain legal representation in circumstances where, as a result of their detention, they will have been unable to work for some time.  These obstacles stand as a significant barrier to people sought for extradition instituting court proceedings for mandamus.  In many cases these impediments will create a practical bar on people commencing proceedings for mandamus.  And, in the interim, the person concerned is held in custody.  Where a person is held in custody without any practical means of challenging the ongoing detention there is a clear injustice to that person.  And even if mandamus proceedings are commenced, success is not automatic. In Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; [2007] HCA 14, the majority at [40] referred to the remarks of Lord Chelmsford in R v Churchwardens of All Saints, Wigan, (1876) 1 App Cas 611 at 620 as follows:

   A writ of mandamus is a prerogative writ and not a writ of right, and it is in this sense in the discretion of the Court whether it shall be granted or not.  The Court may refuse to grant the writ not only upon the merits, but upon some delay, or other matter, personal to the party applying for it; in this the Court exercises a discretion which cannot be questioned. 

4. Against this potential injustice must be balanced the consequence to Australia’s extradition arrangements with other states which might result from the Attorney-General losing the power to make a determination as a result of failing to act as soon as was reasonably practicable having regard to the circumstances. That consequence, however, is in the hands of the Attorney-General. It may be avoided by the Attorney-General acting in accordance with the time limitation stipulated in s 22(2).

   The Issue of Fact

5. It must now be determined whether, as the applicant contended, the Attorney-General lost the power to determine whether to surrender the applicant because the determination was not made as soon as was reasonably practicable having regard to the circumstances after the applicant became an eligible person. 

6. It was common ground that the assessment whether the determination was made within time is to be determined objectively. 

7. It should also be accepted, as the applicant contended, that an unreasonable delay between the date when a person is found by a magistrate to be an eligible person and the date when the Attorney-General makes a determination to surrender the person is evidence that the determination to surrender was not made as soon as was reasonably practicable having regard to the circumstances within the meaning of s 22(2).

8. Using this approach, the following findings of fact are made.  On 10 June 2009, the magistrate found the applicant to be an eligible person.  On 21 February 2012, the Attorney-General determined to surrender the applicant to the US.  This was a period of about two years and eight months.  The applicant was in custody throughout this period. 

9. Immediately after the magistrate’s decision, the Department pressed the applicant to provide any representations to the Attorney-General explaining why he should not be surrendered, and forced him to respond within tight time limits contrary to the requests of his solicitors.  In compliance, his solicitors submitted a lengthy submission and other material on 17 July 2009, and further material on 24 July 2009 and 7 August 2009. 

10. The Department acted quickly to obtain the response of the US to the applicant’s representations.  By 9 September 2009, the US Department of Justice responded that it would comply with its obligations under the CAT including its non-refoulement obligation under Art 3, and by November 2009, the US Department of Justice indicated that the US did not accept that it had a non-refoulement obligation under Art 6 and Art 7 of the ICCPR. 

11. On 14 December 2011, the applicant filed the mandamus proceeding in this Court.  An interlocutory application was listed for hearing on 22 February 2012.  On 1 February 2012, the US agreed to the two assurances.  On 3 February 2012, the Attorney-General was provided with advice from the Department which recommended that she accept the assurances.  On the same day she agreed to accept the assurances. 

12. On 15 February 2012, the Department provided the legal advice to the Attorney-General.  She accepted that advice on 21 February 2012, and on the same day made the determination to surrender the applicant to the US.  That was the day before the interlocutory application was to be heard. 

13. Thus, more than two years – from November 2009 to February 2012 – went by between the time that the Department became aware of the US position in relation to its obligations under the CAT and ICCPR and the time when the Attorney-General made the determination to surrender.  At the end of that period the only developments were that the undertaking concerning the US obligations under the CAT was transformed into an assurance rather than a diplomatic note, and, in relation to the ICCPR issue, a formal assurance was given that the US would give Australia notice of the commencement of immigration proceedings and 30 days notice of its intention to remove the applicant from the US. 

14. Then, in the approximately two months between 14 December 2011, when the mandamus proceeding was filed, and 21 February 2012, when the determination to surrender was made, the US had offered the assurances, the Attorney-General had agreed to them, the Department had provided a very substantial briefing paper including the legal advice relating to the making of the determination, and the Attorney-General had accepted that advice. 

15. Once the applicant established these facts, the evidentiary onus shifted to the Attorney-General to show that the determination was made within time.  The evidence of Ms Harmer of the list of 150 communications between the US and Australia in this period prove only that they happened.  They were described to be “in respect of the determination” but there was no evidence of the subject matter of the exchanges.  The limited evidence concerning the communications was not capable of rebutting the evidence of delay.  The only other rebutting evidence was the conclusory statement in the affidavit of Ms Harmer that the Attorney-General was not in a position to make a decision prior to the receipt of advice from the Department.  But that assertion only provokes the question why the advice was not available two years earlier.  This evidence did not displace the evidence of delay and did not discharge the evidentiary onus which then rested on the Attorney-General.

16. On the facts found it should be concluded that there was unreasonable delay by the Attorney-General in making the determination to surrender the applicant.  As early as 9 September 2009, Australia knew the US view on its obligations under Art 3 of the CAT.  The 30-day assurance provided on 1 February 2012 was purely procedural and did not sufficiently enhance the protection afforded to the applicant to justify a delay of around two years.  The swiftness with which the events moved between December 2011 and February 2012, against the background of the impending mandamus hearing, is testament to the pace which was available when the Attorney-General was prepared to act as soon as reasonably practicable. 

17. On the evidence before the Court, in or about November 2009, was the time when it was as soon as reasonably practicable having regard to the circumstances for the then Attorney-General, Mr McClelland, to make the determination whether to surrender the applicant.  The ordinary meaning of the expression “as soon as” is immediately after.  The period of time within which the requisite immediacy exists is not precisely expressed and is a matter to be determined on the facts of each case.  As Tadgell J observed at [2] in RSPCA v Marson Constructions, “there will in any case be room for debate as to when that point has been reached”. In the present case, the evidence supports a finding that the determination whether to surrender was made some 2 years after it first became reasonably practicable to do so.  In those circumstances, it is not necessary to determine exactly when the period of immediacy came to an end.  It had long passed when the determination was made.

    Conclusion

18. On the proper construction of s 22(2) the power to make a determination to surrender an eligible person ceases if it is not made as soon as is reasonably practicable having regard to the circumstances. As a matter of fact in this case the determination to surrender the applicant to the US was not made as soon as was reasonably practicable having regard to the circumstances. Hence, the Attorney-General did not have power on 21 February 2012 to make the determination to surrender the applicant to the US. The applicant is entitled to a declaration to that effect.

    THE POLITICAL EXCEPTION ISSUE

    Introduction

19. It will be recalled that an eligible person may only be surrendered if the Attorney-General is satisfied that there is no extradition objection in relation to the offence (s 22(3)(a)).  There is an extradition objection if the extradition offence is a political offence in relation to the extradition country (s 7(a)).  A political offence in relation to a country means an offence against the law of the country that is of a political character, whether because of the circumstances in which it is committed or otherwise and whether there are competing political parties in the country (s 5).

20. The issue raised in this section is whether the four offences with which the applicant was charged are political offences and if so, whether the Attorney-General made a jurisdictional error in arriving at her satisfaction under s 22(3)(a) that they were not political offences.

    The Legal Advice

21. The legal advice provided by the Department to the Attorney-General explained that the magistrate who conducted the s 19 proceeding found the applicant eligible for surrender for the four following offences:

    •one count of conspiracy to violate the Arms Export Control Act, in violation of 18 United States Code (U.S.C.) section 371 and 22 U.S.C. section 2778 (Offence 1)

    •one count of conspiracy to provide material support to a foreign terrorist organisation, in violation of 18 U.S.C. section 2339B(a)(1)(Offence 2), and

    •two counts of money laundering, in violation of 18 U.S.C. section 1956(a)(2)(A)(Offences 3 and 4).

22. The legal advice summarised the conduct for which the US sought the extradition of the applicant as follows:

    32.      Mr Santhirajah’s extradition has been sought by the United States for prosecution for alleged terrorism offences relating to his involvement in a conspiracy to purchase military weapons and night-vision goggles in the United States for export.  The alleged purpose of such purchases was to provide those weapons and items to the Liberation Tigers of Tamil Eelam (LTTE), a separatist group in Sri Lanka.  The weapons and items were to be exported from the United States without the requisite licence. 

    33.      US authorities allege that, in furtherance of this conspiracy, Mr Santhirajah and his co-conspirators:

    •met or communicated with each other to discuss the acquisition of weapons

    •communicated with potential suppliers of weapons

    •communicated on a number of occasions with undercover United States investigators purporting to be representatives of a weapons supply business in order to acquire weapons for provision to the LTTE in Sri Lanka and arrange for their delivery

    •submitted a purchase order to the undercover business for weapons to the value of US$3,000,000

    •met with the undercover United States investigators to discuss the purchase and delivery of the weapons

    •inspected and test-fired weapons, and.

    •provided maritime navigation coordinates for the delivery of weapons.

    US authorities also allege that Mr Santhirajah paid money to his co-conspirators as reimbursement for expenses in relation to their activities in acquiring the weapons.  They further allege that, on two occasions, Mr Santhirajah electronically remitted funds totalling US$702,000 to the undercover business for the purchase of the weapons. 

    34.      Between 1983 and 2009 the LTTE were involved in a civil conflict with the Government of Sri Lanka.  The LTTE advocated the overthrow of the Sri Lankan Government and the establishment of a separate state for the Tamil population in northern Sri Lanka and pursued a military campaign against the Sri Lankan Government in furtherance of these goals.

    35.      The LTTE have been identified by the United States Department of State as a Foreign Terrorist Organisation since 1997.  A consequence of this designation is that it is an offence in the United States to provide material support or resources in support of the LTTE in the United States. 

23. The discovered documents referred to earlier in these reasons at [24] included the indictments for the four offences (annexure MAC6), an affidavit in support of the request for extradition, sworn on 2 September 2008 by John C Burgess, a Senior Special Agent with the US Immigration and Custom Enforcement (annexure MAC7), and a second supplementary affidavit in support of the extradition, sworn on 5 February 2009 by James G Warwick, Assistant US Attorney for the District of Maryland employed by the US Department of Justice (annexure MAC8).  These documents were presumably part of the material upon which the summary of the applicant’s conduct was based.  These documents, although referred to in various parts of the briefing paper, were not provided to the Attorney-General as part of the briefing paper.  In themselves these documents are not relevant to the application because they were not before the Attorney-General.  However, their contents were summarised in the briefing paper.

24. What was produced to the Attorney-General as attachment G to the briefing paper was the letter from the US Department of Justice dated 14 September 2009, which responded to a number of matters which had been raised by the applicant in the course of representations made by him to the then Attorney-General, Mr McClelland, concerning his consideration whether to surrender him to the US.  In part that letter explains why the US did not regard the offences as political.  It stated:

    Mr. Santhirajah further alleges that there exists a political dimension which taints the request for extradition made by the United States.  This is not the case at all.  He has been indicted for criminal offenses based on the fact that his conduct has violated the laws of the United States.  The crimes alleged are neither artificial nor are they the product of entrapment. 

    As you may recall, Mr. Santhirajah initiated the criminal chain of events herein when he engaged, as early as February of 2006, the use of brokers and middlemen to secure weaponry for use by the LTTE.  He sponsored trips by these brokers to China and Indonesia, all in furtherance of acquiring weapons for a designated foreign terrorist organization.  These brokers or middlemen reported directly on the fruits of their efforts to Mr. Santhirajah.  A credible source of weapons was identified in Indonesia, which caused Mr. Santhirajah to travel to Jakarta in May of 2006 in order to closely monitor the negotiations and further his illicit goals.  The Indonesian arms dealer, Haji Subandi, had a source of weapons in the United States.  By chance and fortune, this American source was the undercover operation run by Immigration and Customs Enforcement (ICE), a component of the Department of Homeland Security of the United States. 

    In the months that followed, Mr. Santhirajah directed the negotiations for the weapons through Haniffa Bin Osman, one of his middlemen.  Mr. Santhirajah repeatedly voiced his preference for American-made weapons over sources of supply in other countries.  He sponsored a trip by Osman to the United States in the summer of 2006.  The purpose of this trip was for Osman to examine the weapons Mr. Santhirajah sought for the LTTE.  Osman both inspected and test-fired assorted automatic weapons.  When he reported satisfaction with the weapons to Mr. Santhirajah, a wire transfer in the amount of $250,000 was sent from an account controlled by Mr. Santhirajah in Malaysia to the undercover agents as a down payment for assorted weaponry priced at $900,000. 

    Through August and September of 2006, Mr. Santhirajah closely monitored the deal through Osman. Mr. Santhirajah sent Osman and a LTTE arms expert, Thirunavukarasu Varatharasa, to the United States Territory of Guam in September of 2006 in order to conduct a final inspection of the weapons and oversee the transfer of the weaponry to a vessel destined for the waters of Sri Lanka.  Once Osman and Varatharasa satisfied Mr. Santhirajah that the shipment was in order, he sent via wire transfer an additional $452,000 from Malaysia to the undercover bank account.

    As evident from the facts outlined above, Mr Santhirajah was not subjected to entrapment in any form.  He was not subjected to any duress, as he remotely maintained control of matters through Osman and Varatharasa.  He merely pursued an opportunity he believed would lead to the acquisition of powerful weaponry for the LTTE.  Unfortunately for him, the arms dealer in the United States was an undercover law enforcement operation.  Had, by fate, Mr Santhirajah not been able to acquire weaponry through Subandi in Indonesia, he would have continued in his efforts to acquire arms elsewhere.  The encounter with the undercover operation may, in a sense, be artificial in that no arms changed hands.  But it in no way diminishes the seriousness of the offenses committed by Mr. Santhirajah.

    It is the foreign policy of the United States to deter the illicit transfer of weaponry to organizations engaged in terrorism.  When the transfer of weapons is sought from the United States, clearly the laws of the United States constitute a proper mechanism for prevention and punishment of such illegal transfers.  There exist no political or exceptional circumstances herein to justify Mr. Santhirajah’s request that he not be extradited to the United States.

25. The legal advice then set out the applicant’s argument to the Attorney-General that the offences were political offences, as follows at [39]:

    In support of the argument that there exists a political offence extradition objection in this matter, Mr Santhirajah asserts the following matters as being relevant to your determination:

    •         that he is a member of the LTTE

    •that the LTTE was founded in 1976 and controls most of the Northern and Eastern coastal areas of Sri Lanka, and advocates the violent overthrow of the government of Sri Lanka as well as the creation of a separate state for the Tamil population in Northern Sri Lanka

    •the Sri Lankan government has been involved in armed conflict with the LTTE since approximately 1983

    •the LTTE is highly organised and contains components responsible for political activities, intelligence, operations and procurement

    •the object of the conspiracy in which it is alleged Mr Santhirajah was engaged was to export weapons from the United States to the LTTE operating in Sri Lanka (directly or through intermediary countries) for the purpose, inter alia, of their use against the Sri Lankan Air Force and by the Sea Tigers, the marine branch of the LTTE, and

    •the LTTE has been designated in the United States as a Foreign Terrorist Organisation (FTO), pursuant to s 219 of the Immigration and Nationality Act, which involves the formation of an opinion by the United States Secretary of State that:

    i.the organisation is a foreign organisation

    ii.it engages in terrorist activity, and

    iii.the terrorist activity threatens the security of nationals of the United States or the United States itself.

1. Then the legal advice referred to R (on the application of HH) v Westminster City Magistrates’ Court [2011] EWHC 1145 (Admin) (HH) as an example of the way in which the previous two cases applied when considering the best interests of the child in an extradition context. 

2. In HH, the parents of three children, aged 10, 7, and 22 months, were sought for extradition by Italy for serious drug trafficking offences.  If the parents were surrendered the worst case scenario was that the youngest child would be adopted and the two older siblings fostered out, not necessarily together.  The legal advice at [200] quoted Laws LJ as follows:

   Accordingly, while the best interests of affected children are a “primary consideration” in extradition cases, they cannot generally override the public interest in effective extradition procedures.  There has to be an “exceptionally compelling feature” (Norris paragraphs 56, 91), giving rise to “the gravest effects of interference of family life” (paragraph 82).  That is not ipso facto supplied by an extradition’s adverse consequences for the extraditee’s children. 
   (Footnote omitted)

3. The legal advice continued at [201]:

   In addition, Lord Justice Laws distinguished the extradition process from the immigration context, referring to the higher threshold to be met in the extradition context for a person to succeed in a claim that the asserted interference with Article 8 of the ECHR is disproportionate so as to require a determination that extradition be refused.  Immigration policy, being a matter only of domestic policy, may be distinguished from extradition policy in that the achievement of ‘good immigration policy’ is not always fulfilled by the deportation of the person in question – a striking of reasonable balances is an inherent feature of immigration policy.  This is not, however, an inherent feature of extradition – the Court stated that ‘the public interest in extradition is systematically served by the extradition’s being carried into effect, subject to the proper procedures.’  Accordingly, only if there exist in a particular case exceptional circumstances ‘giving rise to the gravest effects of interference with family life’ under Article 8 will the consequences of extradition be disproportionate to the legitimate public interest served by giving effect to a request for extradition. 
   (Emphasis added; Footnote omitted)

4. The legal advice at [202] to [204] then concluded the issue as follows:

   202.The Department considers that the United Kingdom authorities provide useful and relevant guidance for your consideration in balancing the best interests of an affected child as a primary consideration against other considerations relevant to the extradition process, in the exercise of your general discretion to surrender someone pursuant to an extradition request.

   203.It is accepted that the extradition of a person from Australia to another country would have an impact on the person’s immediate family members and other persons close to them.  In Mr Santhirajah’s case this impact would extend to his wife and son.  Mr Santhirajah’s son is an Australian citizen and is able to remain in Australia to be cared for by his mother.  If Mr Santhirajah were to be surrendered to the United States, Varun would not be forced to leave Australia, as the representations suggest.  However, the Department accepts that, in the event of his father’s surrender to the United States, Varun would be separated from his father, an outcome which may not be in his best interests.

   204.Adopting the principles applied in the United Kingdom, the question to be asked, however, is whether the fact of Varun’s separation from his father is so exceptionally compelling that it outweighs the public interest in giving effect to the United States’ request for extradition?

   (Emphasis added)

   The Applicant’s Submissions

5. The applicant contended that by applying the proportionality test articulated in the English authorities the Attorney-General asked herself the wrong question in the exercise of her discretion under s 22(3)(f). The applicant argued that the correct approach to determining the best interests of the child was articulated in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568 (Wan) at [32] as follows:

   …However, it [the Administrative Appeals Tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. 

6. The applicant contended that this approach required the Attorney-General to take into account the fact that Varun, as a citizen of Australia, might be forced to leave Australia with his mother in order to be with the applicant and would thereby lose the value of his citizenship which included “its protection and support, socially, culturally and medically, and in the many other ways evoked by, but not confined to, the broad concept of lifestyle” as described by Burchett J in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. Further, the Attorney-General should have considered the potential social and linguistic disruption to Varun’s childhood as well as the loss of his homeland which would result from this occurring.

7. In the written submissions it was contended that certain core aspects of Varun’s interests were not taken into account as a primary consideration in any real or genuine sense.  These included Varun’s loss of regular contact with, and opportunity for guidance by, the applicant and the disruption to the family life which would flow from the applicant’s inability to live in Australia and the tension, anxiety and confusion which would follow from the fact that the applicant would be imprisoned in the US. 

8. The applicant also contended that the legal advice placed a gloss on the statutory approach required to be followed by the Attorney-General and caused her to ask the wrong question. The legal advice required the Attorney-General to ask whether the best interests of Varun were “exceptionally compelling” so as to outweigh the public interest in giving effect to the extradition request. This amounted to advice that the Attorney-General fetter her discretion. It was contended that the general discretion in s 22(3)(f) is provided to the Attorney-General within the statute governing extradition. The statutory discretion is thus given against the background of the obligations of Australia towards its extradition partners. The general discretion allows for Australia’s obligations under the CRC to be taken into account. Further, the proportionality test used in the UK cases derives from a different legal context. Article 8 of the ECHR mandates the proportionality test, but that provision does not govern the Australian situation.

   The Attorney-General’s Submissions

9. Counsel for the Attorney-General submitted that the interests of Varun which the applicant raised in his representations to the Attorney-General were recorded in the legal advice.  Consequently, there was no failure to deal with the core issues which impacted on the best interests of Varun.

10. Further, it was open to the Attorney-General to treat the UK cases as “useful and relevant guidance for [her] consideration in balancing the best interests of an affected child as a primary consideration against other considerations relevant to the extradition process”.  This did not amount to applying a fetter on the Attorney-General’s discretion.  Nor did the reference to these UK cases lead the Attorney-General to apply the wrong test. 

    Consideration

11. Although the interests of Varun were referred to only very briefly, that reference reflected the representations made by the applicant.  The applicant’s argument that his interests were not sufficiently articulated and given genuine or realistic consideration is not made out. 

12. The way in which Varun’s interests were addressed however, is not as clear.  It may have been appropriate to use the UK cases as guidance because the exercise required when considering the best interests of the child in the extradition context is sufficiently similar in Australia and the UK despite the necessity in the UK additionally to consider the operation of Art 8 of the ECHR.  The issue is whether the legal advice properly represented the state of the law in the UK. 

13. The legal advice at [204] stated that the question which the Attorney-General had to ask was whether the fact of Varun’s separation from this father was so exceptionally compelling that it outweighed the public interest in giving effect to the US request for extradition.  Whether this was the correct question or test was an issue posed in Norris.  The question was answered in the negative. 

14. Lord Hope said at [88] to [89]:

    Mr Sumption challenged the Government’s assertion that the circumstances in which the interference with article 8 rights would not be proportionate will be exceptional.  In paragraph 2 of a closing memorandum on law which he provided to the district judge and made available to the court on the second day of the argument he said that it was not necessary to show exceptional circumstances in order to make out a case for refusing extradition.  He referred to Huang v Secretary of State for the Home Department [2007] 2 AC 167, para 20, where Lord Bingham of Cornhill said that “exceptionality” was not a legal test. Applying that observation to this case, he added that the law recognises that the balance will not necessarily come down in favour of extradition, and that it would not be right to treat the test as a rule of thumb with substantially the same effect. In oral argument he said that there was no such threshold that had to be crossed. As it was put in Huang, this may be the expectation but it is not a legal test.  The phrase “only in exceptional circumstances” was used by the commission in Launder v United Kingdom (1997) 25 EHRR CD 67, but he said that this was an early decision and it had not been adopted by the Strasbourg court in its later case law. 

    I agree that exceptionality is not a legal test, and I think that it would be a mistake to use this rather loose expression as setting a threshold which must be surmounted before it can be held in any case that the article 8 right would be violated.  As Lord Phillips of Worth Matravers PSC has observed, the phrase “exceptional circumstances” says little about the nature of the circumstances: para 56, above.  It tends to favour maintaining the integrity of the system as the primary consideration rather than focusing on the rights of the individual.  It risks diverting attention from a close examination of the circumstances of each case.  Although in its admissibility decision in King v United Kingdom (Application No 9742/07) (unreported) given 26 January 2010 it followed the commission’s decision in Launder 25 EHRR CD 67 in using the phrase “exceptional circumstances”, decisions of the Strasbourg court have repeatedly shown that an intense focus on the rights of the individual is necessary when striking the balance that proportionality requires.  I do not think that there are any grounds for treating extradition cases as falling into a special category which diminishes the need to examine carefully the way the process will interfere with the individual’s right to respect for his family life. 
    (Emphasis added)

15. Counsel for the Attorney-General recognised this aspect of Norris when he said: 

    …what the court there recognised was not that it had to be exceptional, but rather, that the reference to exceptional reflected the probabilities of most cases; that – given extradition is designed to move the extraditee from the jurisdiction to a foreign jurisdiction to face either conviction if, in fact, convicted and absconded, or a trial with the risk of detention at the end of the trial – it will always be likely that, if there are family interests, that they will be adversely affected by the granting of extradition. 

16. Thus, the law in the UK requires the best interests of the child to be formulated, and then balanced against the importance of extradition as part of a system of cooperation among states to ensure that criminal acts do not go unpunished.  There is no test in the UK which requires the decision-maker to ask whether the interests of the child are exceptionally compelling.  And yet the legal advice erroneously stated at [204] that “the question to be asked, however, is whether the fact of Varun’s separation from his father is so exceptionally compelling that it outweighs the public interest in giving effect to the United States’ request for extradition”. 

    Conclusion

17. Again, in the absence of any evidence to the contrary, it should be inferred that the Attorney-General asked the question which the legal advice suggested and the Attorney-General used the answer to that question as part of the basis on which to exercise her general discretion under s 22(3)(f).

18. The issue is whether this error was a jurisdictional error which entitled the applicant to relief.  In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, Mc Hugh, Gummow and Hayne JJ with whom Gleeson CJ agreed at [82] said:

    82It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error.  As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal):

    “…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

    “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. 
    (Footnotes omitted; emphasis added)

19. The Attorney-General asked herself the wrong question concerning the best interests of Varun in a way which affected the exercise of power.  This was a jurisdictional error which entitled the applicant to a declaration that the determination to surrender him to the US was an invalid exercise of power.    

    PROCEDURAL FAIRNESS

    The Applicant’s submissions

20. The exercise of the power to surrender under s 22(2) is subject to the requirements of procedural fairness: Attorney-General v Foster (1999) 84 FCR 582; [1999] FCA 81 at [45]. Counsel for the applicant argued that there were a number of instances in which the applicant was denied procedural fairness.

21. First, he contended that the Attorney-General failed to consider a key part of the applicant’s case.  On 2 September 2009, the solicitors for the applicant sent to the Department a statement made by the applicant together with a submission concerning the statement.  The statement set out in detail the circumstances both of the applicant’s life generally, and of the events which were said to constitute the offences charged in the US.  In particular, the statement explained that the applicant felt compelled by pressure from the LTTE and by possible repercussions from refusing to cooperate to allow his bank account to be used for transferring funds in the weapons purchase transaction.  For instance, the statement recorded at [52] to [54] the role of Alex who was acting on behalf of the LTTE: 

    52.I wanted to settle down with Priya, earn a dowry for my sister back in Jaffna so they could marry, have a family, run a business.  I knew if I got involved in what Alex wanted, my life would be a ruin.  And that is what has happened anyway.

    53.He called me to come to Johor from Kuala Lumpur.  I don’t know how to explain to outsiders why I had to do it.  It was an obligation because of the LTTE business people.  They can label me in a different way if I do not help.  That’s the negative part of the LTTE – and if they label you like that, I can’t go back to the North to see my family, and my family will suffer.

    54.If labelled as traitors by the LTTE, that is the end.  Their threat doesn’t need to be said exactly.  For example Tamil people outside Sri Lanka who refuse to give money, the LTTE turned them back at checkpoints if they visited the North or East and they cannot see their families.  You go on a blacklist.  Some people are executed as traitors, others on the LTTE hit list, they can label me as swindling LTTE, they can hurt my family. 

22. The legal advice summarised this aspect of the statement, although counsel suggested that the summary was incomplete and failed to capture the entire context as explained in the statement.  However, it was accepted that the full statement itself was included in the briefing paper.  The substantial complaint relates to the way the statement was treated in [169] to [171] of the legal advice, and hence by the Attorney-General.  The legal advice was in the following terms:

    169.The Australian extradition process does not involve an assessment of guilt or innocence.  This accords with internationally-accepted practice and was reaffirmed in the case of Vasiljkovic v Commonwealth of Australia [2006] HCA 40 in which Gleeson CJ said, at [34]:

    Plainly, extradition has serious implications for the human rights, and in particular for the personal liberty, of the person who is the subject of a request for surrender.  Those implications are not limited to the case of a person who is an Australian citizen.  The interference with personal liberty involved in detention during the extradition process (if that occurs), and in involuntary delivery to another country and its justice system is not undertaken as a form of punishment.  No doubt, to the person involved, some of its practical consequences may be no different from punishment, but the purpose is not punitive.  To repeat, the process involves no adjudication of guilt or innocence.  It is undertaken for the purpose of enabling such an adjudication to be made in a foreign place, according to foreign law, in circumstances where Australia has no intention itself of bringing the person to trial for the conduct of which the person is accused. (Department’s emphasis)

    170.As such, representations made by a person regarding the circumstances of the alleged offending are not relevant to the Australian extradition process, but rather to the substantive criminal prosecution to take place in a requesting country should a person be extradited.  In any event, Mr Santhirajah does not claim he did not engage in the conduct alleged against him, but rather that he felt obliged to do so. 

    Conclusion

    171.Accordingly, the Department does not consider that the representations regarding the role allegedly played by Mr Santhirajah and the context of the extradition offences preclude the exercise of your general discretion to surrender him to the United States.

1. It was submitted that the legal advice treated the applicant’s statement as irrelevant and, in effect, advised the Attorney-General to disregard it.  Counsel argued that the material in the statement was in fact relevant to the exercise of the Attorney-General’s discretion. 

2. The second instance of an alleged denial of procedural fairness concerns the applicant’s representation to the Attorney-General that the extradition request was made in exceptional circumstances such that she should exercise her general discretion in favour of the applicant.  The legal advice at [173] summarised the applicant’s representations which were made in the submissions forwarded with the letter dated 17 July 2009 from the applicant’s solicitors to the Department.  Apparently, the Department wrote to the US Department of Justice outlining the applicant’s contentions.  The US Department of Justice replied on 14 September 2009 in terms set out at [51] of these reasons.  The contents of this letter were summarised at [174] of the legal advice. 

3. The Department’s view of this material was then expressed at [175]-[178] as follows:

   175.The Department notes Mr Santhirajah’s representations regarding the artificiality of the connection between the alleged conduct and the national security of the United States.  The Department notes that the weaponry at issue in this matter was to be purchased from the United States and that accordingly, this constitutes a real connection to the United States.

   176.In addition, the Department notes that resolutions of the United Nations Security Council have repeatedly recognised that terrorist activity in ‘all forms and manifestations’ constitutes a threat to international peace and security.  In addition, it is only through ‘active participation and collaboration’ of all states that this threat may be combated.  As these resolutions are passed under Chapter VII of the Charter of the United Nations, they are formally binding at the international level on member states such as Australia and the United States.  Accordingly, the Department is not of the opinion that in all of the circumstances there is an ‘artificial’ connection between the alleged conduct and the national security of the United States. 

   177.With respect to Mr Santhirajah’s representations regarding ‘entrapment’ by ICE officials, the Department notes that Mr Santhirajah is not alleging that the actions of the these officials were unlawful or inappropriate so as to render the request for extradition an abuse of process.  The United States has provided detailed information on Mr Santhirajah’s engagement with the undercover operation and the Department considers that the operation has all the appearances of being conducted as a duly authorised and lawful undercover operation.

   Conclusion

   178.Accordingly, the Department does not consider the ‘exceptional’ circumstances raised by Mr Santhirajah in his representations preclude the exercise of your general discretion under paragraph 22(3)(f) to surrender him to the United States.   

4. It was submitted by the applicant that procedural fairness required that the applicant be informed of the risk that an adverse finding may be made against him unless the risk necessarily inhered in the subject matter to be decided, be told of any issue critical to the decision which was not apparent from its nature or the terms of the statute under which it was made, and be told of any adverse information that was credible, relevant and significant to the decision to be made.

5. The letter from the US Department of Justice contained information not otherwise known to the applicant including the US version of the circumstances leading up to the arrest of the co-accused.  It was submitted that the letter from the US Department of Justice was an attempt by the US to persuade the Attorney-General to exercise her power to surrender the applicant. The applicant contended that procedural fairness thus required the Department to inform the applicant of the comments of the US Department of Justice and give the applicant an opportunity to respond. 

6. Further, the applicant argued that his statement about the circumstances of the alleged offences and the US Department of Justice response were dealt with inconsistently.  The applicant’s statement was put aside as irrelevant because the Attorney-General was not concerned with guilt or innocence.  But the US Department of Justice letter on the same subject was accepted as the basis for rejecting the argument that the circumstances of the extradition request were exceptional.  This inconsistent treatment was also procedurally unfair. 

7. Finally, it was said that the failure to inform the applicant of the negotiation of and proposal to accept, assurances from the US amounted to a failure to accord procedural fairness to the applicant.  The assurances were critical to the determination made by the Attorney-General.  The legal advice accepted that there was a real danger to the applicant of torture or cruel, inhuman, and degrading treatment or punishment if returned to Sri Lanka.  Without the assurances the Attorney-General could not have agreed to the surrender of the applicant.  Yet the applicant was not told of the possibility of the assurances being provided and was not given the opportunity to make representations about the efficacy of the assurances.

   The Respondent’s Submissions

8. The Attorney-General accepted that the applicant was entitled to procedural fairness.  The issue was what was required in the particular circumstances of this case to satisfy the demands of procedural fairness. 

9. The Attorney-General first submitted that, fairly read, the legal advice suggested that the applicant’s statement was irrelevant only insofar as it addressed the guilt or innocence of the applicant.  The legal advice did not counsel the Attorney-General to ignore the statement in totality.  Indeed, elements of the statement of the applicant were relied upon in a number of the sections of the legal advice which followed.  The legal advice was correct in stating that the Attorney-General should not consider whether the applicant was guilty or innocent of the offences.  The statutory scheme requires only that a request is made in relation to an offence which falls within the legislation. 

10. The Attorney-General next contended that it was not necessary for the applicant to be given the right to respond to the letters sent in reply to the Department by the US Department of Justice.  Those letters answered the representations made by the applicant.  In the circumstances, procedural fairness did not require that those letters be put to the applicant for a further counter-submission. There had to be an end some time.  The process adopted allowed the Attorney-General to understand the position of both the applicant and the US.  Furthermore, the position of the US had been articulated before the magistrate in the s 19 hearing.  Consequently, the US view expressed in the letters could not have been a surprise to the applicant. 

11. Finally, the Attorney-General argued that it was unnecessary as a matter of procedural fairness for the applicant to be told of the negotiations for the assurances or of the agreement reached between Australia and the US in relation to them.  Questions such as the efficacy of the assurance or the manner by which it might be carried into effect were subject to the principle of non-adjudication as articulated in McCrea v Minister for Customs and Justice (2004) 212 ALR 297; [2004] FCA 1273 upheld on appeal (McCrea v Minister for Customs and Justice (2005) 145 FCR 269; [2005] FCAFC 180) subject to comments at [24]-[25].

    Consideration

12. The applicant’s argument that the Attorney-General did not consider the circumstances of the applicant’s actions in that she did not give sufficient attention to the applicant’s personal statement should not be accepted.  This argument falters when it is appreciated that the entire statement was produced to the Attorney-General.  The statement was referred to at various points in the legal advice.  There was no failure to observe the requirements of procedural fairness in the legal advice rejecting parts of the statement as relevant to the one section which dealt with the guilt or innocence of the applicant for the offences charged in the US.  Parts of the statement were referred to in other sections of the legal advice where they were relevant. 

13. Similarly, the applicant’s argument that there was a denial of procedural fairness because he was not shown the US Department of Justice letter of reply dated 14 September 2009, or expressly made aware of its contents should not be accepted.  The applicant did not contradict the Attorney-General’s submission that the material in the letter was disclosed in the s 19 hearing.  In any event, it was reasonable for the Department to determine that the process to be followed would be to seek representations from the applicant and then to seek a response from the US Department of Justice. 

14. The final argument stands in a different position.  The critical opinion of the Department in this case was that the applicant faced a real risk of torture or cruel, inhuman and degrading treatment or punishment if he was returned to Sri Lanka.  The only way the Attorney-General could surrender him to the US was if this risk was addressed effectively.  On this issue the applicant was entitled to be brought, and kept, in the picture.  According to the Department it centrally concerned his very life.  The failure to advise him of the negotiation of the assurances failed to accord him procedural fairness. 

15. The principle of non-adjudication on which the Attorney-General relied is inapplicable to this situation.  The applicant’s argument was not directed to the efficacy of an act of the US government.  Rather, it was addressed to the obligation of the government of Australia to give the applicant an opportunity to know about and respond to arrangements being negotiated to protect him from potentially life threatening harm before any agreement between the US and Australia was concluded. 

    Conclusion

16. As a result of this denial of procedural fairness, the determination to surrender the applicant was invalid and he is entitled to a declaration to that effect. 

    DISPOSITION

17. As explained in the foregoing reasons, the determination to surrender the applicant made by the Attorney-General on 21 February 2012, was made without power and is invalid.  The applicant is entitled to declarations to that effect, and the Court will make such declarations. 

18. The applicant sought additional relief to ensure that the determination to surrender was not acted upon.  The Court expects that the Attorney-General will act conformably with the declarations made by the Court.  Any application for further orders consequential on the making of the declarations is listed for hearing at 3 pm on Monday 3 September 2012.

19. As the applicant has succeeded in the application, the Attorney-General must pay the applicant’s costs of the proceeding. 

I certify that the preceding three hundred and forty-five (345) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       31 August 2012