Timar v Minister for Justice and Customs - [2001] FCA 663

FEDERAL COURT OF AUSTRALIA
Timar v Minister for Justice & Customs [2001] FCA 663
EXTRADITION – Decision of Minister for Justice and Customs regarding extradition to Hungary and warrant for surrender – Operation of the Extradition (Republic of Hungary) Regulations 1997 – Whether Minister failed to comply with article 3.2(f) of the Treaty on Extradition between Australia and the Republic of Hungary - Whether article 3.2(f) requires exceptional circumstances - Whether the Minister failed to take into account relevant matters – Whether the Minister’s decision was unreasonable
WORDS & PHRASES – “exceptional circumstances”
Judiciary Act 1903 (Cth) s39B
Extradition Act 1988 (Cth) ss 11(1)(b); 22(2); 23
Extradition (Republic of Hungary) Regulations 1997
Timar v Minister for Justice and Customs [2001] FCA 295 referred to
Foster v Minister for Customs and Justice [2000] HCA 38, (2000) 200 CLR 442 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 referred to
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 - 628 applied
LASZLO PEREGRIN TIMAR v MINISTER FOR JUSTICE AND CUSTOMS
V96 OF 2001
MARSHALL J
MELBOURNE
5 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V96 OF 2001

BETWEEN:

LASZLO PEREGRIN TIMAR
APPLICANT

AND:

MINISTER FOR JUSTICE AND CUSTOMS
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

5 JUNE 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of application, including any reserved costs, to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V96 OF 2001

BETWEEN:

LASZLO PEREGRIN TIMAR
APPLICANT

AND:

MINISTER FOR JUSTICE AND CUSTOMS
RESPONDENT

JUDGE:

MARSHALL J

DATE:

5 JUNE 2001

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 6 February 2001, the applicant, Professor Laszlo Peregrin Timar, applied to the Court for orders pursuant to s39B of the Judiciary Act 1903 (Cth) and for declaratory relief in respect of a determination by the respondent Minister to surrender the applicant for extradition to Hungary and the consequent issuing of a warrant for surrender.
Factual background
On 11 January 2001, pursuant to s22 of the Extradition Act 1988 (Cth) (“the Act”), the Minister determined that Professor Timar be surrendered to the Republic of Hungary in relation to certain alleged offences for which he was found eligible for surrender by a Magistrate on 22 April 1999.
Hungarian authorities have alleged that Professor Timar was involved in the burning down of a house in Hungary in October 1992 and in ensuing insurance fraud with respect to that property. Professor Timar permanently left Hungary in 1995 and travelled to Australia. He attained Australian citizenship in 1997. In his last employment he was the Head of the Department of Electrical Engineering at what is now RMIT University.
The history of Professor Timar’s challenges in…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2001] FCA 663
Decision Date: 5 JUNE 2001

CaseChat Overview and Summary

In the matter of Timar v Minister for Justice and Customs, the applicant, Professor Laszlo Peregrin Timar, sought orders under section 39B of the Judiciary Act 1903 (Cth) and declaratory relief in respect of a determination by the Minister for Justice and Customs to surrender him for extradition to Hungary. The Minister's decision was made in accordance with the Extradition Act 1988 (Cth) and related to alleged offences committed in Hungary, including the burning of a house and insurance fraud. Professor Timar, who has Australian citizenship and significant health issues, argued that the Minister should not have surrendered him to Hungary under the Extradition Act and Treaty between Australia and Hungary.

The primary legal issue before the Court was whether the Minister was entitled to consider exceptional circumstances before deciding to surrender Professor Timar to Hungary, as per Article 3.2(f) of the Treaty. Professor Timar contended that the Minister erred in requiring him to demonstrate exceptional circumstances to avoid extradition. Additionally, he argued that the Minister failed to take into account relevant matters, such as his age, family situation in Australia, and his health conditions, which should have influenced the decision under Article 3.2(f) of the Treaty.

The Court held that the Minister was entitled to consider exceptional circumstances under Article 3.2(f) of the Treaty when determining whether to refuse extradition. The Court found no error in the Minister's consideration of these circumstances and rejected Professor Timar's argument that the Minister's reasons were inadequate. The Court also found that the Minister properly exercised her discretion under the Extradition Act and did not fail to consider relevant matters. Consequently, the Court dismissed the application and ordered Professor Timar to pay the respondent's costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of application, including any reserved costs, to be taxed in default of agreement.

Background

Background to the litigation

On 6 February 2001, the applicant, Professor Laszlo Peregrin Timar, applied to the Court for orders pursuant to s39B of the Judiciary Act 1903 (Cth) and for declaratory relief in respect of a determination by the respondent Minister to surrender the applicant for extradition to Hungary and the consequent issuing of a warrant for surrender.Factual background On 11 January 2001, pursuant to s22 of the Extradition Act 1988 (Cth) (“the Act”), the Minister determined that Professor Timar be surrendered to the Republic of Hungary in relation to certain alleged offences for which he was found eligible for surrender by a Magistrate on 22 April 1999. Hungarian authorities have alleged that Professor Timar was involved in the burning down of a house in Hungary in October 1992 and in ensuing insurance fraud with respect to that property. Professor Timar permanently left Hungary in 1995 and travelled to Australia. He attained Australian citizenship in 1997. In his last employment he was the Head of the Department of Electrical Engineering at what is now RMIT University. The history of Professor Timar’s challenges in this Court was set out in an interlocutory judgment, Timar v Minister for Justice and Customs [2001] FCA 295 (“the interlocutory judgment”) at [5] and [6] as follows:“On 22 December 1998, pursuant to s12(1) of the Act, a Magistrate signed a warrant for the arrest of Professor Timar. The warrant was executed on 12 January 1999. Shortly after, Professor Timar was granted bail subject to certain reporting conditions and an appropriate surety. On 22 April 1999, pursuant to s19 of the Act, another Magistrate ordered that Professor Timar was eligible for surrender to the Republic of Hungary. Professor Timar sought to review that order pursuant to s21 of the Act. The application for review was heard by Weinberg J. On 5 November 1999 his Honour found that Professor Timar was eligible for surrender; see Timar v Republic of Hungary [1999] FCA 1518. On 10 November 1999 a Full Court granted Professor Timar bail subject to certain conditions and suitable surety; see Timar v Republic of Hungary [1999] FCA 1559. On 7 June 2000 a Full Court dismissed an appeal from the judgment of Weinberg J; see Timar v Republic of Hungary [2000] FCA 755.Professor Timar was taken into custody on 7 June 2000 and has remained in custody thereafter. On 18 January 2001, Professor Timar’s solicitors received a communication that the respondent had made a determination, pursuant to s22 of the Act, that Professor Timar be surrendered to the Republic of Hungary and that a warrant had been issued pursuant to s23 of the Act.” The interlocutory judgment at [20] summarised Professor Timar’s health problems as follows:·“On 31 October 2000 Professor Timar’s right kidney was removed during surgery at St Vincent’s Hospital;·Professor Timar suffers from unstable high blood pressure which requires medication and close monitoring and has been exacerbated since incarceration;·Professor Timar’s high blood pressure is likely, in the long term, to adversely affect his remaining kidney;·Professor Timar suffers from impaired glucose tolerance, which has implications for cardiovascular problems. He also is at risk of other vascular complications of hypertension.”The statutory context

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

The reason for this, it was submitted, is because compelling reasons must be shown for the Minister to refuse to comply with the general or usual position where an extradition request will be complied with. Reference in this context was made to Art 1 of the Treaty which is headed – “OBLIGATION TO EXTRADITE” and provides that:“The Contracting States undertake to extradite to each other, subject to the provisions of this Treaty, any person found in the territory of one of the Contracting States who is wanted for prosecution by a competent authority for, or has been convicted of, an extraditable offence against the law of the other Contracting State.”(ii) Consideration On a proper construction of the Treaty - when the Treaty is read as a whole and in the context of the Act - I consider that the Minister in coming to her relevant “state of satisfaction” was entitled to consider whether the circumstances were such that the otherwise usual course of extradition should not occur. Article 3 itself is titled, “EXCEPTIONS TO EXTRADITION”. The circumstances referred to in Art 3.2(f) are by their very terms exceptional. What the Minister is required to consider in determining whether to refuse extradition by reference to Art 3.2(f) is whether these exceptional circumstances apply to the “eligible person”, in this case Professor Timar. Reference to exceptional circumstances in the material that advised the Minister and upon which she ultimately acted, in its proper context, is not surprising. The submissions on this issue by counsel for Professor Timar essentially amount to an invitation to the Court to do exactly what the High Court said it should not do in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In Wu at 272 the following was said:“…the reasons of an administrative decision- maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.” I reject the submission made on behalf of Professor Timar that the Minister erred by imposing a requirement that Professor Timar show exceptional circumstances so that his extradition may be refused.Failure to take into account relevant matters(i)Competing contentions It was submitted on Professor Timor’s behalf that the Minister failed to take into account several matters that she was required to under Art 3.2(f) in coming to her relevant “state of satisfaction”. These matters were alleged to be the following:· the age of Professor Timar and the difficulty he would have in attempting to re-establish himself within the community· the position of his family who permanently reside in Australia· several matters relating to Professor Timar’s health; such asØhigh blood pressure problemsØthe effect upon his health caused by continued incarceration It was contended that by failing to take the above matters into account, the Minister failed to comply with Art 3.2(f) of the Treaty, and failed to properly exercise her powers under s22 of the Act. Consequently, so the argument ran, she had no authority to sign the warrant for surrender under s23 of the Act.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V96 OF 2001

BETWEEN:	LASZLO PEREGRIN TIMAR APPLICANT
AND:	MINISTER FOR JUSTICE AND CUSTOMS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	5 JUNE 2001
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	5 JUNE 2001
PLACE:	MELBOURNE