Zentai v Honourable Brendan O'Connor & Ors (No. 3) - [2010] FCA 691

FEDERAL COURT OF AUSTRALIA
Zentai v Honourable Brendan O’Connor (No 3) [2010] FCA 691

Citation: Zentai v Honourable Brendan O’Connor (No 3) [2010] FCA 691

Parties: CHARLES ZENTAI v THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS, COMMONWEALTH ATTORNEY-GENERAL, BARBARA LANE, THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON and THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON

File number: WAD 220 of 2009

Judge: MCKERRACHER J

Date of judgment: 2 July 2010

Catchwords:
ADMINISTRATIVE LAW - judicial review – s 39B(1) and s 39B(1A) of the Judiciary Act 1903 (Cth) - review of decisions made pursuant to ss 16, 19 and 22 of the Extradition Act 1988 (Cth) - failure to consider a relevant matter - jurisdictional error - Wednesbury unreasonableness

EXTRADITION - whether the applicant was ‘accused’ for the purposes of the Extradition Act and therefore an ‘extraditable person’ - where extradition sought for investigation and criminal proceedings not commenced by the requesting country - material before the Minister when he decided to issue a Notice under s 16 of the Extradition Act - where decisions pursuant to s 19 and s 22 of the Act are parasitic on the decision made pursuant to s 16 - where new material became available to the Minister- whether extradition was sought for an ‘extraditable offence’ - double criminality - where offence was not an offence in the requesting country at the time of the conduct constituting the offence - humanitarian considerations - where requesting country may not be capable of providing a fair trial - where applicant is 89 years old and in poor health - where alternatives were available to the Minister pursuant to the legislative scheme if extradition were refused

Legislation:
Extradition Act 1988 (Cth) ss 3(a), 6, 11, 16, 16(1), 16(2), 19, 19(9), 19(10), 21, 22, 22(2), 22(3)
Federal Court of Australia Act 1976 (Cth) s 23
Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A)

Treaty on Extradition Treaty Between Australia and the Republic of Hungary 1995 Arts 1, 2, 3, 7

Constitution s 75(v)

Cases cited:
A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221
ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197
(Associated Provincial Picture Houses v Wednesbury Corporation 1948] 1 KB 223
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Baker v The Queen (2004) 223 CLR 513
Bruce v Cole (1998) 45 NSWLR 163
Cabal v Vanstone (2000) 101 FCR 112
Cabal v United Mexican States (No 3) (2000) 186 ALR 188
Chang v Laidley Shire Council (2007) 234 CLR 1
Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453
Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat & Live-Stock Corporation (1990) 96 ALR 153
Federal Commissioner of Taxation v Brian Hatch Timber Co. (Sales) Pty. Ltd.(1972) 128 CLR 28
Foster v Minister for Customs & Justice (1999) 164 ALR 357
Foster v Minister for Customs and Justice (2000) 200 CLR 442
Habib v Commonwealth of Australia (2010) 113 ALD 469
Hamden v Rumsfeld 548 US 557 (2006)
Harris v Attorney-General (Cth) (1994) 52 FCR 386
Hempel v Attorney-General (Cth) (1987) 77 ALR 641
Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Immigration, Local Government & Ethnic Affairs, Minister for v Pashmforoosh (1989) 18 ALD 77
Jason McGoldrick and Michael Turner v Central Court, Pest (McGoldrick-Turner) [2009] EWHC 2816
Kajewski v Commissioner of Taxation (2003) 52 ATR 455
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Kolotex Hosiery (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1975) 132 CLR 535
Lichtenstein v Guatemala (1955) 22 ILR 349
M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 532
McHugh Holdings Pty Ltd v Director General (NSW) [2009] NSWSC 1359
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Mokbel v Attorney-General for the Commonwealth of Australia (2007) 162 FCR 278
Murrumbidgee Groundwater Preservation Assn Inc v Minister for Natural Resources [2005] NSWCA 10
O'Donoghue v Ireland (2009) 263 ALR 392
O'Donoghue v Ireland, Zentai v Republic of Hungary, Williams v United States of America (2008) 234 CLR 599
Oates v Attorney-General (2001) 181 ALR 559
Pasini v United Mexican States (2002) 209 CLR 246
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Public Prosecutions (Cth), Director of v Kainhofer (1995) 185 CLR 528
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
R v Davis [2008] 1 AC 1128
Re Arton (No 2) [1896] 1 QB 509
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212

Republic of Croatia v Snedden (2010) 265 ALR 621
Saville v Health Care Complaints Commission [2006] NSWCA 298
Secretary of State for the Department v AF [2009] UKHL 28

Snedden v Republic of Croatia (2009) 178 FCR 546
Sykes v Cleary [No 2] (1992) 176 CLR 77

Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516

Tervonen v Minister for Justice and Customs (No 2) (2007) 98 ALD 589
Timar v Minister for Justice and Customs (2001) 113 FCR 32
Trenk v District Court of Pizen-Mesto, Czech Republic [2009] EWHC 1132
Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180
Vasiljkovic v Commonwealth (2006) 227 CLR 614
Victrawl Pty Ltd v Telstra Corp Ltd (1995) 183 CLR 595
Vyner v Keeper of Her Majesty's Penitentiary at Malabar (1975) 6 ALR 105
Western Australia v Watson [1990] WAR 248
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Windisch v Austria (1990) 13 EHRR 281
Zentai v Honourable Brendan O’Connor (No 2) [2010] FCA 252
Zentai v Honourable Brendan O’Connor [2009] FCA 1597
Zentai v Republic of Hungary (2006) 153 FCR 104
Zentai v Republic of Hungary (2007) 157 FCR 585
Zentai v Republic of Hungary (2009) 180 FCR 225
Zentai v Republic of Hungary (No 2) [2006] FCA 1735
Zentai v Republic of Hungary [2007] FCA 842
Zentai v Republic of Hungary [2007] HCATrans 491
Zentai v Republic of Hungary [2008] FCA 1335
Zentai v Republic of Hungary [2009] FCA 284
Zentai v Republic of Hungary [2009] FCA 511

Date of hearing: 27-28 April 2010

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 401

Counsel for the Applicant: MJ McCusker QC with PW Johnston and VM Priskich

Solicitor for the Applicant: Fiocco’s Lawyers

Counsel for the First, Second and Fifth Respondents: JD Allanson SC with P Hannan

Solicitor for the First, Second and Fifth Respondents: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 220 of 2009

BETWEEN:
CHARLES ZENTAI
Applicant

AND:
THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS
First Respondent

COMMONWEALTH ATTORNEY-GENERAL
Second Respondent

BARBARA LANE
Third Respondent

THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON
Fourth Respondent

THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON
Fifth Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

2 JULY 2010

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The applicant, within 28 days, do file and serve submissions supporting a minute of orders which the applicant contends should be made.

2.The respondents who wish to do so, do file and serve within 28 days submissions in reply and a minute of orders proposed.

3.The applicant, within 14 days thereof, do file any submissions in reply and any amended orders.

4.There be liberty to apply.

5.Costs be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 220 of 2009

BETWEEN:
CHARLES ZENTAI
Applicant

AND:
THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS
First Respondent

COMMONWEALTH ATTORNEY-GENERAL
Second Respondent

BARBARA LANE
Third Respondent

THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON
Fourth Respondent

THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON
Fifth Respondent

JUDGE:

MCKERRACHER J

DATE:

2 JULY 2010

PLACE:

PERTH

REASONS FOR JUDGMENT

INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..

[1]

BACKGROUND........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....

[3]

THE CHALLENGE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........

[66]

THE LEGISLATIVE FRAMEWORK........ ........ ........ ........ ........ ........ ........ ........ ........ ..

[77]

SOME THRESHOLD CONSIDERATIONS........ ........ ........ ........ ........ ........ ........ .......

[86]

The role of advice to the Minister........ ........ ........ ........ ........ ........ ........ ........ ........ .....

[86]

The timing of the s 16 challenge........ ........ ........ ........ ........ ........ ........ ........ ........ ........

[93]

A difficult challenge........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....

[99]

GROUNDS OF REVIEW AS AMENDED........ ........ ........ ........ ........ ........ ........ ........ ..

[101]

EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....

[102]

GROUNDS CONSIDERED INDIVIDUALLY........ ........ ........ ........ ........ ........ ........ ...

[112]

Ground 1 – the applicant is not ‘accused’ of an offence under Hungarian law and hence is not an ‘extraditable person’ within the meaning of the Act........ ........ .......

[112]

Ground 2 – that the magistrate’s determination on 20 August 2008 that Mr Zentai was an eligible person under s 19 and her committing Mr Zentai to imprisonment were beyond jurisdiction, unlawful and void........ ........ ........ ........ .......

[161]

Ground 3 – the Minister’s order to surrender Mr Zentai for extradition under s 22 was beyond jurisdiction and void........ ........ ........ ........ ........ ........ ........ ........ ........ ...

[167]

Ground 4 – war crime was not a ‘qualifying extradition offence’ for which Mr Zentai is liable to be surrendered for extradition – retrospectivity not permitted..

[184]

Ground 5 – nationality of applicant as a basis for discretionary refusal........ ........ ..

[215]

The nationality of Mr Zentai........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .

[218]

Ground 5A – article 3(2)(b) of the Treaty – the Australian Federal Police and the Commonwealth Director of Public Prosecutions did decide to refrain from prosecuting Mr Zentai for the alleged offence........ ........ ........ ........ ........ ........ ........ ..

[234]

Ground 6 - article 3 para 2(f) of the Treaty – Mr Zentai’s extradition would be unjust, oppressive and incompatible with humanitarian considerations because of the Minister’s failure to be satisfied that Hungary is capable of providing a fair trial........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......

[260]

Ground 7 – section 7(c) of the Act – Mr Zentai may be prejudiced at his trial by reason of his nationality or political opinions........ ........ ........ ........ ........ ........ ........ ....

[293]

Ground 8 – article 3 para 1(f) – offence cannot be tried by the Military Panel.......

[309]

Ground 9 – article 3 para 2(f) – failure to consider properly whether it would be oppressive and incompatible with humanitarian considerations to surrender Mr Zentai for extradition given his advanced age, ill-health and other factors including the severity of the sentence in the circumstances........ ........ ........ ........ .....

[322]

Ground 10 – misapprehension that Hungary was unaware of Mr Zentai’s presence in Australia due to his name change from Steiner to Zentai........ ........ .....

[348]

Ground 11 – the Minister’s flawed, illogical and irrational conclusion is so manifestly unreasonable that it cannot stand as a proper and genuine discharge of his responsibilities under the Act........ ........ ........ ........ ........ ........ ........ ........ ........ ...

[364]

Ground 12: failure to give reasons........ ........ ........ ........ ........ ........ ........ ........ ........ ...

[377]

CONCLUSION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......

[387]

INTRODUCTION

The applicant (Mr Zentai) applies for judicial review in respect of three decisions made under the Extradition Act 1988 (Cth) (the Act).
·The first is the second respondent’s (the Attorney-General) decision made on 8 July 2005 to issue a notice under s 16 of the Act;
·The next is the third respondent’s (the magistrate) decision made on 20 August 2008 to issue a warrant committing Mr Zentai to prison under s 19(9) of the Act; and
·The third is the first respondent’s (the Minister) decision made on 12 November 2009 under s 22 of the Act to surrender Mr Zentai to the Republic of Hungary (Hungary).
There are five affidavits relied upon in support of Mr Zentai’s case. The first of those affidavits dated 19 November 2009 is the most extensive and is the subject of discussion below. Generally, the essential factual material is not in dispute.
BACKGROUND
The reasons in the following judgments, either interlocutory or final, record previous litigation involving Mr Zentai and various representatives of the Government:
Zentai v Republic of Hungary (2006) 153 FCR 104
Zentai v Republic of Hungary (No 2) [2006] FCA 1735
Zentai v Republic of Hungary (2007) 157 FCR 585
Zentai v Republic of Hungary [2007] FCA 842
O'Donoghue v Ireland, Zentai v Republic of Hungary, Williams v United States of America (2008) 234 CLR 599
Zentai v Republic of Hungary [2008] FCA 1335
Zentai v Republic of Hungary [2009] FCA 284
Zentai v Republic of Hungary [2009] FCA 511
Zentai v Republic of Hungary (2009) 180 FCR 225
Zentai v Honourable Brendan O’Connor [2009] FCA 1597
Zentai v Honourable Brendan O’Connor (No 2) [2010] FCA 252
The contemporary events commenced on 3 March 2005 when Captain Dr Toth Csaba, a Military Judge of the Military Division of the Budapest Metropolitan Court, issued Warrant Number KBNY V 4/2005/3 for the arrest of Mr Zentai (Hungarian Arrest Warrant).
The Hungarian Arrest Warrant on its face alleged that Mr Zentai had committed a war crime contrary to s 165 of Act IV of 1978 (being the Criminal Code of Hungary).
In substance, the allegation is that the crime occurred on 8 November 1944 at Budapest in the following circumstances:
1.Mr Zentai was a soldier in the Hungarian Royal Army attached to a unit stationed at Budapest.
2.Whilst on patrol duty Mr Zentai captured Mr Peter Balazs (a young man of Jewish origin).
3.Mr Zentai dragged Mr Balazs back to the unit’s army post.
4.Mr Zentai and two other soldiers (Captain Mader and First Lieutenant Nagy) assaulted Mr Balazs over a number of hours. Mr Balazs died of his injuries.
5.Mr Zentai, Captain Mader and First Lieutenant Nagy weighted Mr Balazs’ body and threw it into the Danube River.
The Department of International Criminal Law of the Ministry of Justice of Hungary sent a letter dated 23 March 2005 to the Commonwealth Attorney-General’s Department (the Department) seeking the extradition of Mr Zentai from Australia to Hungary for the purpose of prosecution under the Hungarian Arrest Warrant.
The Department prepared a submission dated 8 July 2005 in respect of the s 16 Notice Decision required of the Attorney-General under s 16 of the Act.
On 8 July 2005 the Attorney-General made the s 16 Notice Decision.
On 8 July 2005 a provisional arrest warrant for the arrest of Mr Zentai was issued under s 12 of the Act: see Zentai v Republic of Hungary (2009) 180 FCR 225 (at [2]).
On 8 July 2005, Mr Zentai was arrested and granted bail subject to conditions.
On 8 July 2005 eligibility proceedings under s 19 of the Act were commenced in the Perth Magistrates Court in respect of Hungary’s request that Mr Zentai be extradited.
On 6 February 2006, Mr Zentai commenced proceedings in the Federal Court challenging the validity of the functions conferred on State magistrates under the Act.
On 12 September 2006, Siopis J dismissed the proceedings: see Zentai v Republic of Hungary (2006) 153 FCR 104.
On 21 September 2006, Mr Zentai appealed Siopis J's decision to the Full Federal Court.
On 16 April 2007, Moore, Tamberlin and Gyles JJ dismissed the appeal: see Zentai v Republic of Hungary (2007) 157 FCR 585.
On 11 May 2007 Mr Zentai sought special leave to appeal to the High Court against the Full Federal Court decision.
On 3 September 2007 the High Court granted Mr Zentai special leave to appeal: see Zentai v Republic of Hungary [2007] HCATrans 491.
On 23 April 2008 the High Court dismissed the appeal against the decision: see O'Donoghue v Ireland, Zentai v Republic of Hungary, Williams v United States of America (2008) 234 CLR 599.
On 18 August 2008 the eligibility proceedings in the Perth Magistrates Court were heard by the magistrate.
On 20 August 2008 the magistrate determined that Mr Zentai was eligible for extradition to Hungary and made the s 19 Committal Decision: see Zentai v Republic of Hungary 180 FCR 225 (at [5]).
On 20 August 2008, Mr Zentai applied to the Federal Court (WAD 178 of 2008) under s 21 of the Act for review of the magistrate's determination under s 19 of the Act that Mr Zentai was eligible for extradition to Hungary.
On 20 August 2008, Mr Zentai was granted bail pending the determination of the application.
On 9 March 2009 a relative of Mr Zentai living in Hungary delivered to the Military Division of the Budapest Metropolitan Court a series of written questions concerning Hungarian criminal law and procedure.
On 13 March 2009, Gilmour J heard Mr Zentai's application under s 21 of the Act.
By letter dated 19 March 2009 an officer of the Budapest Metropolitan Court replied to some of the questions referred to above.
On 31 March 2009, Gilmour J affirmed the magistrate’s determination under s 19 of the Act that Mr Zentai was eligible for extradition to Hungary: see Zentai v Republic of Hungary [2009] FCA 284.
On 6 April 2009, Mr Zentai appealed Gilmour J’s decision to the Full Federal Court (WAD 47 of 2009).
By a letter dated 25 May 2009 from Mr Zentai’s solicitors to the Freedom of Information Section of the Commonwealth Attorney-General’s Department (the FOI Section), Mr Zentai made a request under the Freedom of Information Act 1982 (Cth) for disclosure of: (1) documents recording the s 16 Notice Decision; (2) any departmental submission concerning the making of the s 16 Notice Decision; and (3) any opinion that the offence of war crime under s 165 of the Hungarian Criminal Code was an extradition offence.

In response to that request, the FOI Section sent Mr Zentai's solicitors a letter dated 23 June 2009 enclosing an incomplete copy of a submission dated 8 July 2005 in respect of the issue of a notice under s 16 of the Act.
Under cover of a letter dated 20 August 2009, Mr Zentai's solicitors sent the Attorney-General submissions in respect of the Minister’s possible decision under s 22 of the Act.
On 25 August 2009, Black CJ, Tracey and Barker JJ heard the appeal in WAD 47 of 2009: see Zentai v Republic of Hungary (2009) 180 FCR 225.
Under cover of a letter dated 31 August 2009, Mr Zentai's solicitors sent the Minister copies of the documents referred to in the questions concerning Hungarian criminal law and procedure and made submissions in respect of the Minister’s possible decision under s 22 of the Act.
By a letter dated 7 September 2009 from Mr Zentai's solicitors to the Minister, Mr Zentai made further submissions in respect of the Minister’s possible decision under s 22 of the Act. That letter referred to the decision of the Full Federal Court in Snedden v Republic of Croatia (2009) 178 FCR 546.
Under cover of a letter dated 18 September 2009, Mr Zentai’s solicitors sent the Minister ‘personal submissions’ in respect of the Minister’s possible decision under s 22 of the Act.
By a letter dated 21 September 2009, Mr Mark Ierace SC of the New South Wales Public Defender’s Office made a submission to the International Crime Cooperation Central Authority (the ICCCA) concerning the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2009.
In the submission to the ICCCA, Mr Ierace SC suggested it would be appropriate to add an extradition objection to the Act - viz where on surrender to the extradition country the subject person may be prejudiced in her/his trial by reason of a failure to comply with Art 14 of the ICCPR.
In the submission to the ICCCA, based on media reports and a telephone conversation with Mr Zentai's counsel, Mr Ierace SC opined that any trial of Mr Zentai in Hungary would contravene Art 14(3)(e) of the ICCPR because:
1.there are no living witnesses to the crime Mr Zentai is alleged to have committed;
2.confessions made by Mr Zentai’s two alleged accomplices, who were arrested shortly after World War II, were alleged by those persons to have been extracted under torture; and
3.reliance by the prosecution on statements from deceased witnesses would mean that Mr Zentai's counsel could not cross examine.
The Department of International Criminal Law of the Ministry of Justice of Hungary sent a letter dated 23 September 2009 to the Commonwealth Attorney-General’ Department providing information about, inter alia, Hungarian criminal law and procedure.
On 8 October 2009 the Full Federal Court dismissed the appeal in WAD 47 of 2009: see Zentai v Republic of Hungary (2009) 180 FCR 225.
The Department of International Criminal Law of the Ministry of Justice of Hungary sent a letter dated 14 October 2009 to the Department providing information about, inter alia, the proposed travel arrangements for Mr Zentai and whether he would receive a fair trial.
By a letter dated 19 October 2009 from Mr Zentai's solicitors to the ICCCA, Mr Zentai, amongst other things, asked whether Hungary had provided advice as to whether: (1) Mr Zentai’s extradition was sought for the purpose of immediate prosecution; and (2) Mr Zentai would be able to ask questions at trial of prosecution witnesses.
Under cover of a letter dated 21 October 2009, the ICCCA provided to Mr Zentai’s solicitors a summary of advice received from Hungary concerning those matters.
Under cover of a letter dated 26 October 2009, Mr Zentai's solicitors sent the ICCCA supplementary submissions in respect of the Minister’s possible decision under s 22 of the Act.
The Department of International Criminal Law of the Ministry of Justice of Hungary sent a letter dated 30 October 2009 to the Department providing further information about, inter alia, Hungarian criminal law and procedure.
By a letter dated 5 November 2009, Dr Sarah McCosker of the Office of International Law (OIL) in the Department provided the ICCCA with advice on the prospects of Hungary providing Mr Zentai with a fair trial and an adequate standard of detention in the event Mr Zentai was returned to Hungary.
The Department presented to the Minister a submission and supporting documents for the Minister’s consideration prior to making the s 22 Surrender Decision.
On 12 November 2009 the Minister made a determination under s 22 of the Act that Mr Zentai be extradited to Hungary.
On 12 November 2009 the Minister issued a warrant under s 23 of the Act requiring Mr Zentai to be released from prison into the custody of Australian police officers and then into the custody of Hungarian police officers for transport to Hungary.
On 12 November 2009, the ICCCA informed Mr Zentai's solicitors that the Minister had:
1.made a determination under s 22 of the Act that Mr Zentai should be extradited to Hungary; and
2.issued a warrant under s 23 of the Act.
By a letter dated 12 November 2009 from Mr Zentai's solicitors to the ICCCA, Mr Zentai sought reasons for the s 22 Surrender Decision and copies of all documents to which the Minister had regard in making the s 22 Surrender Decision.
Under cover of a letter dated 18 November 2009 the ICCCA provided to Mr Zentai’s solicitors a copy of the submission and supporting documents but with only a redacted version of a document entitled ‘Consideration of the Pre-conditions to Surrender and Grounds for Refusal of Surrender under the Extradition Act 1988’ (also referred to as Attachment C).
By a letter dated 19 November 2009 from Mr Zentai's solicitors to the ICCCA, Mr Zentai again requested the Minister to provide reasons for making the s 22 Surrender Decision.
On 19 November 2009, Mr Zentai commenced WAD 210 of 2009 seeking an interim injunction to restrain his extradition consequent upon the s 22 Surrender Decision.
On 19 November 2009, Barker J made an order in WAD 210 of 2009 restraining the Minister until further order from giving effect to the s 22 Surrender Decision. That order was made on the undertaking of Mr Zentai to commence proceedings on or before 4 December 2009.
By a letter dated 20 November 2009 from the ICCCA to Mr Zentai's solicitors, the Minister declined to provide reasons for making the s 22 Surrender Decision.
On 4 December 2009, Mr Zentai commenced these proceedings (WAD 220 of 2009) by filing an application with supporting grounds of review.
On 16 December 2009, I made orders in WAD 210 of 2009 discharging the interim injunction restraining the Minister until further order from giving effect to the s 22 Surrender Decision and dismissing the application.
On 16 December 2009, I made orders in these proceedings joining the third and fourth respondents as parties.
On 16 December 2009 I also made orders in these proceedings staying the s 19 Committal Decision and the s 23 Warrant Decision and admitting Mr Zentai to bail: see Zentai v Honourable Brendan O'Connor [2009] FCA 1597.
On 16 December 2009, Mr Zentai filed an amended application and amended grounds of review in these proceedings (dated 15 December 2009).
On 17 December 2009, Mr Zentai served on the Minister and the Attorney-General a notice to produce an unredacted version of Attachment C.
On 23 December 2009 the third and fourth respondents filed a notice of intention to abide by the decision of the Court.
On 8 January 2010 the Minister served a notice of objection to the notice to produce an unredacted version of Attachment C.
On 19 March 2010, I ordered the Minister and the Attorney-General to comply with the notice to produce: see Zentai v Honourable Brendan O'Connor (No 2) [2010] FCA 252.
THE CHALLENGE
The primary relief now sought by Mr Zentai is review of the Determination of the Minister made on 12 November 2009 that Mr Zentai be surrendered for extradition to Hungary pursuant to s 22 of the Act. The application is made pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) together with s 39B(1) and s 39B(1A) of the Judiciary Act 1903 (Cth) (the Judiciary Act). Mr Zentai seeks a declaration that the Determination is invalid. He also pursues consequential orders in the nature of certiorari, injunction and prohibition to quash the Determination. He seeks orders restraining and prohibiting the Minister from implementing the Determination.
Mr Zentai contends that the Attorney-General acting through his delegate, the then Minister for Justice, erred in law and in fact and misdirected himself on a fundamental matter regarding whether Mr Zentai was ‘an extraditable person’ and made a jurisdictional error in both deciding to issue and issuing, pursuant to s 16 of the Act, a Notice of Receipt of Extradition Request on 8 July 2005.
The reason for this, it is said, is that according to information provided on 17 March 2009 by the leader of the Military Panel of the Budapest Municipal Court (Military Panel) and accepted as correct by the Hungarian Government, the extradition of Mr Zentai was sought only for the purposes of preliminary investigation about his involvement in an alleged war crime. There is and has been no indictment before the Military Panel charging Mr Zentai with any offence.
Mr Zentai contends that as the proceedings in the Military Panel are investigative and preliminary and not at a more advanced stage involving the laying of any charge, he is not a person who is ‘accused’ (within the meaning of s 6(A) of the Act) of having committed the alleged offence of a war crime in relation to which Hungary’s request for extradition was made. Mr Zentai argues that the statutory requirement that an ‘extraditable person’ be ‘accused’ of a relevant extradition offence is not satisfied by expressions such as ‘wanted for prosecution’ or being ‘suspected of committing’ the relevant offence. He contends that the s 16 notice was therefore unlawful and void. It follows therefore, he argues, that the order made on 20 August 2008 by the magistrate, after conducting eligibility proceedings pursuant to s 19(9) of the Act, was beyond jurisdiction, unlawful and void. Mr Zentai also claims that the Minister (as distinct from the Attorney-General) erred in law and in fact and misdirected himself on a fundamental matter in the same way.
From this, it is said that as Mr Zentai was not an extraditable person when the request for his extradition was made to the Australian Government, proceedings against him under the Act were and are contrary to the requirements of the Act and should not have been commenced.
A further contention is that the Minister erred in law in determining that Mr Zentai was to be surrendered under s 22 of the Act in relation to a ‘qualifying extradition offence’ of war crime, as the alleged war crime was not an offence under Hungarian municipal law at the date when it is alleged the conduct constituting the offence occurred (8 November 1944).
Mr Zentai maintains that the Minister also erred in law in failing to give proper, realistic and genuine consideration to whether, in the exercise of the discretion conferred by Art 3 para 2(a) of the Treaty on Extradition Between Australia and the Republic of Hungary 1995 (the Treaty), he should refuse extradition having regard to the fact that Mr Zentai is a national of Australia and all other relevant factors.
Mr Zentai asserts that the Minister erred in law in failing to conclude that Mr Zentai’s extradition would be unjust, oppressive and incompatible with humanitarian considerations as provided for in terms of Art 3 para 2(f) of the Treaty. In relation to this argument, it is said that the Minister failed to satisfy himself as to the capacity of the Military Panel to provide procedures consistent with Australia and Hungary’s international obligations under Art 14 of the International Covenant on Civil and Political Rights (the ICCPR) to ensure a fair trial if the Military Panel were to charge and prosecute Mr Zentai for the offence of war crime. It is said the Minister failed to take into account that Hungary relies upon minutes and records of statements made in criminal proceedings before the Hungarian People’s Court in 1946-1947 by the defendants and various witnesses in the trials of Captain Mader and Lieutenant Nagy. Such statements by deceased persons will, it is said, apparently be the foundation on which any prosecution of Mr Zentai would be based.
Those witnesses are said to be no longer alive or available for examination.
The Minister, it is said, has given no adequate consideration to the fact that the Hungarian authorities have failed to give an assurance that statements recorded by the People’s Court in 1946-1947 that were possibly ‘coerced by torture’ would not be produced as evidence in proceedings before the Military Panel.
Extensive particulars are supplied in support of the contention that there could be no guarantee of a fair trial before the Military Panel.
THE LEGISLATIVE FRAMEWORK
The principle objects of the Act include:
·to codify the law relating to the extradition of persons from Australia to extradition countries: s 3(a); and
·to enable Australia to carry out its obligations under extradition treaties.
By Pt II of the Act, procedures are established to be followed in circumstances where a request for extradition is made to Australia by an extradition country. There are four stages in extradition proceedings – commencement, remand, determination by a magistrate of eligibility for surrender and the Executive determination that a person is to be surrendered: Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389. Mr Zentai challenges decisions by the Minister and the Attorney-General at the commencement stage (s 16) and the Executive’s determination (s 22).
Where the Attorney-General receives an extradition request, he or she may in his or her discretion by notice state that the request has been received (s 16(1)). By subs (2), the occasions in which the Attorney-General shall not give the notice are specified. Each of those occasions is by reference to the opinion of the Attorney-General as to specific matters.
Section 19 provides for the determination of eligibility for surrender by a magistrate performing an administrative function as persona designata. An order of a magistrate under s 19(9) or s 19(10) may be the subject of review by a Federal Court or the Supreme Court of the State or Territory (s 21). The reviewing court is required to determine whether the decision of the magistrate was right or wrong and, if wrong, what decision should have been made by the magistrate. This process enables the determination of rights and liabilities of the parties to the review proceedings. It is the exercise of judicial power: Pasini v United Mexican States (2002) 209 CLR 246 at 255; Public Prosecutions (Cth), Director of v Kainhofer (1995) 185 CLR 528.
Finally, s 22 of the Act makes provision for an Executive determination as to whether a person who has been found by a magistrate to be an eligible person will be surrendered. Section 22(3) provides in paras (a)-(f) a series of requirements to be met if the eligible person is to be surrendered. These include (in para (f)) a general discretion.
Section 22 provides as follows:
22 Surrender determination by Attorney-General
(1)In this section:
eligible person means a person who has been committed to prison:
(a)by order of a magistrate made under section 18; or
(b)by order of a magistrate made under subsection 19(9) or required to be made under subparagraph 21(2)(b)(ii) (including by virtue of an appeal referred to in section 21), being an order in relation to which no proceedings under section 21 are being conducted or available.
qualifying extradition offence, in relation to an eligible person, means any extradition offence:
(a)if paragraph (a) of the definition of eligible person applies—in relation to which the person consented in accordance with section 18; or
(b)if paragraph (b) of the definition of eligible person applies—in relation to which the magistrate referred to in that paragraph or the court that conducted final proceedings under section 21, as the case requires, determined that the person was eligible for surrender within the meaning of subsection 19(2).
(2)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.
(3)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;
(c)where the offence is punishable by a penalty of death—by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:
(i)the person will not be tried for the offence;
(ii)if the person is tried for the offence, the death penalty will not be imposed on the person;
(iii)if the death penalty is imposed on the person, it will not be carried out;
(d)the extradition country concerned has given a speciality assurance in relation to the person;
(e)where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:
(i)surrender of the person in relation to the offence shall be refused; or
(ii)surrender of the person in relation to the offence may be refused;
in certain circumstances—the Attorney-General is satisfied:
(iii)where subparagraph (i) applies—that the circumstances do not exist; or
(iv)where subparagraph (ii) applies—either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and
(f)the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.
(4)For the purposes of paragraph (3)(d), the extradition country shall be taken to have given a speciality assurance in relation to the eligible person if, by virtue of:
(a)a provision of the law of the country;
(b)a provision of an extradition treaty in relation to the country; or
(c)an undertaking given by the country to Australia;
the eligible person, after being surrendered to the country, will not, unless the eligible person has left or had the opportunity of leaving the country:
(d)be detained or tried in the country for any offence that is alleged to have been committed, or was committed, before the eligible person’s surrender other than:
(i)any surrender offence;
(ii)any offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the eligible person could be convicted on proof of the conduct constituting any surrender offence;
(iii)any extradition offence in relation to the country (not being an offence for which the country sought the surrender of the eligible person in proceedings under section 19) in respect of which the Attorney-General consents to the eligible person being so detained or tried; or
(e)be detained in the country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the eligible person’s surrender to the first mentioned country, other than any offence in respect of which the Attorney-General consents to the eligible person being so detained and surrendered.
(5)Where the Attorney-General determines under subsection (2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney-General shall order, in writing, the release of the person.

By s 11 of the Act, regulations under the Act may state that the Act applies in relation to a specified extradition country subject to certain limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country. Regulations in this instance have been made, Extradition (Republic of Hungary) Regulations 1997 (the Regulations). Regulation 4 provides that the Act applies subject to the Treaty set out in the schedule to the Regulations.
The decisions of the Attorney-General under s 16 and s 22 are not subject to review under the Act. Decisions under the Act are also excluded from review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) by virtue of sch 1 to the ADJR Act. The decisions are, however, subject to the constitutional writs provided for under s 75(v) of the Constitution and s 39B of the Judiciary Act. Those writs lie for jurisdictional error but do not permit a review of the merits of a decision.
It is necessary also to consider certain Articles of the Treaty as set out in the schedule to the Regulations. Articles 1, 2, 3 and 7 of the Treaty provide as follows:
ARTICLE 1
OBLIGATION TO EXTRADITE
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.
ARTICLE 2
EXTRADITABLE OFFENCES
1.For the purposes of this Treaty, extraditable offences are offences however described which are punishable under the laws of both Contracting States by imprisonment for a maximum period of at least one year or by a more severe penalty. Where the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, extradition shall be granted only if a period of at least six months of such penalty remains to be served.
2.For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting States:
(a)it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology;
(b)the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Contracting States, the constituent elements of the offence differ.
3.Where extradition of a person is sought for an offence against a law relating to taxation, customs duties, foreign exchange control or other revenue matter extradition may not be refused on the ground that the law of the Requested State does not impose the same kind of tax or duty or does not contain a tax, duty, customs, or exchange regulation of the same kind as the law of the Requesting State.
4.Where the offence has been committed outside the territory of the Requesting State extradition shall be granted where the law of the Requested State provides for the punishment of an offence committed outside its territory in similar circumstances. Where the law of the Requested State does not so provide the Requested State may, in its discretion, grant extradition.
5.Extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed, provided that:
(a)it was an offence in the Requesting State at the time of the acts or omissions constituting the offence; and
(b)the acts or omissions alleged would, if they had taken place in the territory of the Requested State at the time of the making of the request for extradition, have constituted an offence against the law in force in that State.
ARTICLE 3
EXCEPTIONS TO EXTRADITION
1.Extradition shall not be granted in any of the following circumstances:
(a)if the offence for which extradition is sought is a political offence. Reference to a political offence shall not include:
(i)an offence constituted by taking or endangering, attempting to take or endanger or participating in the taking or endangering of, the life of a person, being an offence committed in circumstances in which such conduct creates a collective danger, whether direct or indirect, to the lives of other persons;
(ii)any offence in respect of which the Contracting States have assumed or will assume an obligation pursuant to an international agreement to which they are both Parties, to submit the case to their competent authorities for a decision as to prosecution if extradition is not granted; or
(iii)an offence against the law relating to genocide;
(b)if there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality or political opinion or that that person’s position may be prejudiced for any of those reasons;
(c)if the offence for which extradition is sought is an offence under military law, which is not an offence under the ordinary criminal law of the Contracting States;
(d)if final judgement has been passed in the Requested State or in a third state in respect of the offence for which the person’s extradition is sought;
(e)if the person whose extradition is sought has, according to the law of either Contracting State, become immune from prosecution or punishment by reason of lapse of time; or
(f)if the person, on being extradited to the Requesting State, would be liable to be tried or sentenced in that State, by a court or tribunal:
(i)that has been specially established for the purpose of trying the person’s case; or
(ii)that is only occasionally, or under exceptional circumstances, authorised to try persons accused of the offence for which extradition is sought.
2.Extradition may be refused in any of the following circumstances:
(a)if the person whose extradition is sought is a national of the Requested State. Where the Requested State refuses to extradite a national of that State it shall, if the other State so requests and the laws of the Requested State allow, submit the case to the competent authorities in order that proceedings for the prosecution of the person in respect of all or any of the offences for which extradition has been sought may be taken;
(b)if the competent authorities of the Requested State have decided to refrain from prosecuting the person for the offence in respect of which extradition is sought;
(c)if the offence with which the person sought is accused or convicted, or any other offence for which that person may be detained or tried in accordance with this Treaty, carries the death penalty under the law of the Requesting State unless that State undertakes that the death penalty will not be imposed or, if imposed, will not be carried out;
(d)if the offence for which extradition is sought is regarded under the law of the Requested State as having been committed in whole or in part within that State;
(e)if a prosecution in respect of the offence for which extradition is sought is pending in the Requested State against the person whose extradition is sought;
(f)if the Requested State, while also taking into account the nature of the offence and the interests of the Requesting State, considers that, in the circumstances of the case, including the age, health or other personal circumstances of the person whose extradition is sought, the extradition of that person would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment.
3.This Article shall not affect any obligations which have been or shall in the future be assumed by the Contracting States under any multilateral Convention.
ARTICLE 7
ADDITIONAL INFORMATION
1.If the Requested State considers that the information furnished in support of a request for extradition is not sufficient in accordance with this Treaty to enable extradition to be granted that State may request that additional information be furnished within such time as it specifies.
2.If the person whose extradition is sought is under arrest and the additional information furnished is not sufficient in accordance with this Treaty or is not received within the time specified, the person may be released from custody. Such release shall not preclude the Requesting State from making a fresh request for the extradition of the person.
3.Where the person is released from custody in accordance with paragraph 2, the Requested State shall notify the Requesting State as soon as practicable.
SOME THRESHOLD CONSIDERATIONS
The role of advice to the Minister
The Act does not require the decision-maker under s 22 to give reasons. There is no other statutory obligation to give reasons. The evidence in support of Mr Zentai’s application includes submissions with supporting attachments prepared by officers of the Department for consideration of the Minister as delegate of the Attorney-General. The submission (which has been referred to as Attachment C) does not constitute a statement of reasons of the Minister (Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [40]). It does, nevertheless, set out, for the Minister’s consideration, the preconditions for surrender and the mandatory and discretionary grounds for refusing surrender under s 22 of the Act and the Treaty. The representations made on behalf of Mr Zentai were addressed or attached to Attachment C. It summarises those representations and the Department’s response to the representations relevant to the preconditions for surrender, grounds for refusal and the exercise of the Minister’s discretion. Attachment C includes advice of the Department that it is open to the Minister to be satisfied that the requirements of s 22 are met. The Minister reached that conclusion by circling the word ‘approved’ on the front page of a minute enclosing Attachment C and signing and dating that action.
I will refer to the first, second and fifth respondents collectively as the ‘Commonwealth’. The Ministers and the Attorney-General were represented but the learned magistrate and the fourth respondent filed submitting appearances.
For the Commonwealth it was stressed, and I accept, that Attachment C should be read as a whole and individual parts should not be taken out of context. Secondly, it should be noted that an error in the advice to the Minister does not of itself constitute reviewable error or, in itself, render the decision invalid: McHugh Holdings Pty Ltd v Director General (NSW) [2009] NSWSC 1359 (at [41]) and Oates v Attorney-General (2001) 181 ALR 559 (at [133]).
For Mr Zentai, it was contended that while there is no explicit statutory obligation under the Act or elsewhere to record findings and provide reasons, a requirement to that effect should be implied from s 22 of the Act. This argument, indeed, is necessary for Mr Zentai to succeed on a specific ground of the appeal which will be discussed below. As will be evident from my consideration of the ground, I do not consider that there is an obligation to give reasons, nor can it be implied. The reasons for reaching that conclusion will also be discussed below.
Mr Zentai stresses that the Commonwealth response in relation to Attachment C is artificial in that it does not function in a purely neutral, independent and impartial manner. To the contrary, it is argued for Mr Zentai that it does overwhelmingly stress a particular policy viewpoint, is argumentative, expresses opinions, makes comments urging views upon the Minister to a degree that is almost wholly negative and adverse to any propositions advanced by Mr Zentai. It is submitted that the Court should read Attachment C as a document seriously intended to influence the Minister’s decision. Mr Zentai accepts that Attachment C needs to be read as a whole and also that mere demonstration that legal advice from the Department to the Minister is wrong, is not sufficient to establish reviewable error. Rather, it is contended for Mr Zentai that the individual issues for review depend on the proper inferences the Court draws from the existence of erroneous advice, its likely effect on the Minister’s determination and whether it has caused the determination to miscarry.
In R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, in a joint judgment of Dixon CJ, Williams, Webb and Fulligar JJ a writ of prohibition issued prohibiting the cancellation or possible suspension of the registration of an employer by the Board in circumstances where the fact disclosed no basis for supposing that the employer was ‘unfit to continue to be registered as an employer’. In the analysis of the material that was before the Board, their Honours said (at 119-120):
It is not enough if the Board or the delegate of the Board, properly interpreting paras (a) and (b) of s 23(1) and applying the correct test, nevertheless satisfies itself or himself on inadequate material that facts exist which in truth would fulfil the conditions which one or other or both of those paragraphs prescribe. The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its existence do not exist in law and in fact.
Taking the totality of the material in Attachment C, an appropriate question in my view is whether, taken as a whole, there are sufficient inadequacies and/or sufficient errors so as to reach the conclusion, by inference, that the wrong test has been applied or that the Minister was not ‘in reality’ satisfied of all or some of the requisite matters.
The timing of the s 16 challenge
There is also a threshold debate as to the timing of the s 16 challenge. Mr Zentai seeks certiorari to quash the decision and notice under s 16 of the Act. For the Commonwealth it is argued that unwarrantable delay is a discretionary basis for the refusal of a constitutional writ: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400.
The assertion of rights by other legitimate means, however, may be a sufficient explanation for delay in seeking judicial review: M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 532 (at [8]) per Finkelstein J. But the Commonwealth contends that Mr Zentai has provided no explanation for the delay in challenging the s 16 decision and notice.
In my view, if there be any delay, the cause of it is obvious. Mr Zentai had only become aware on 17 March 2009 of the fact that the Hungarian authorities wanted him for what was described as investigation only and that he might therefore not be properly ‘accused’ for the purposes of s 16 of the Act (the 2009 information). Prior to that date, inquiries about the Hungarian process directed to Hungary through its legal representatives yielded no response. It was a private inquiry directed to the Head of the Military Panel that finally led to the revelation concerning the status of the proceedings against Mr Zentai. It was only from this point that this issue became the basis of representations to the Minister in anticipation of a decision to be made by the Minister under s 22 of the Act.
On the timing issue, another debate arises. The Commonwealth argues that Mr Zentai can only challenge on the basis of materials which were before a decision-maker at the time of making the decision. In each instance this was prior to receipt of the 2009 information. For Mr Zentai it is submitted that it is artificial to assert that the Attorney-General (or the Minister as his delegate) is incompetent to revisit the various issues concerning eligibility on the basis that he is irremediably bound to accept as valid the original s 16 notice issued by his delegate. It would be open for the Minister, if he chose, to undertake what is really an administrative reconsideration of all the various preconditions to surrender that were already considered at an earlier stage. Nothing in s 22 of the Act would render the prior provisional determinations of jurisdictional facts functus officio.
Nor, it is argued, does the delay argument accord with the remarks of the Full Court in Zentai v Republic of Hungary (2009) 180 FCR 225 (at [33]-[35], [76]-[77] which recognise that the opportunity to challenge the eligibility of Mr Zentai on grounds going to the existence of the particular offence and the eligibility status (the ‘inquiry’ versus being ‘accused’ argument) can still arise at the s 22 stage.
I do not accept that there has been relevant delay on the part of Mr Zentai. Nor would I refuse to consider the issues arising from grounds 1, 2 and 3 of the application on the basis of that contention.
A difficult challenge
Before coming to consider the arguments raised concerning s 16 and s 22 of the Act, something should be said about the correct approach to reviewing the opinion reached by a decision-maker or the satisfaction reached by the decision-maker about matters referred to in those sections.
The Commonwealth makes the point that s 16 and s 22 are to be construed as requiring the decision-maker to ‘reasonably form the opinion or be so satisfied’. The question on judicial review is whether the decision-maker could have formed that opinion or obtained that satisfaction reasonably in the sense explained in numerous authorities. To take just one of those, however, in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 and 432, Latham CJ emphasised that the question for a reviewing court is whether the opinion or satisfaction was such that it could be formed by a reasonable man who correctly understands the law. The Chief Justice stated that if the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required had not been formed. In that event, the basis for the exercise of the power would be absent just as if it were shown that the opinion was arbitrary, capricious, irrational or not bona fide.
GROUNDS OF REVIEW AS AMENDED
The grounds for review were:
1.The Second Respondent, acting through his delegate, the Minister for Justice and Customs of the Commonwealth, erred in law and fact and misdirected himself on a fundamental matter regarding whether the Applicant was an "extraditable person", and made a jurisdictional error, in deciding to issue, and issuing, pursuant to s.16 of the Act, a Notice of Receipt of Extradition Request (the s.16 Notice) on 8 July 2005.
Particulars
(a)According to information provided on 17 March 2009 by the leader of the Military Panel of the Budapest Municipal Court (“Military Panel”) and accepted as correct by the Hungarian Government, the extradition of the Applicant is only sought for the purposes of preliminary investigation about his involvement in the alleged war crime, and there is no indictment currently before the Panel charging him with the alleged offence.
(b)As the proceedings instituted in the Military Panel are essentially investigative and preliminary and not at a more advanced state involving the laying of any charge, the Applicant is not a person who is “accused” (within the meaning of s.6(a) of the Act) of having committed the alleged offence of war crime in relation to which the Republic of Hungary's request for extradition was made.
(c)The statutory requirement that an “extraditable person” be “accused” of a relevant extradition offence is not met by equating it with expressions such as “wanted for prosecution”, or being “suspected of committing” the relevant offence.
(d)The Applicant therefore is not and never was an "extraditable person" within the meaning of, and for the purposes of, the Act.
(e)As the Applicant was not an "extraditable person" when the Extradition Request was made by the Republic of Hungary to the Australian Government, the Second Respondent should not have acted upon the Extradition Request by issuing the s.16 Notice. To do so was beyond his statutory power.
(f)The s.16 Notice was therefore unlawful and void.
2.The order made on 20 August 2008 by the Third Respondent, after conducting eligibility proceedings under s.19 of the Act, pursuant to s.19(9) of the Act, committing the Applicant to imprisonment in Western Australia, was beyond jurisdiction, unlawful and void.
Particulars
(a)Eligibility proceedings under s.19 of the Act cannot be conducted unless, as required by s.19(1)(b) of the Act, the Attorney-General has directed "a notice under s.16(1)" to a magistrate.
(b)By reason of the matters particularised in the preceding Ground, the s.16 Notice directed to the Third Respondent on 8 July 2005 by the Second Respondent, purportedly pursuant to s.16(1) of the Act, was unlawful and of no legal effect.
(c)Therefore the Applicant should not have been found to be an "eligible person", and the Third Respondent had no power or jurisdiction to conduct proceedings under s.19 of the Act, or to make the order, on 20 August 2008, pursuant to s.19(9) of the Act, committing the Applicant to prison.
3.The Minister (First Respondent) made an error of law and fact and misdirected himself on a fundamental matter regarding whether the Applicant was capable of being surrendered under the Act, and made a jurisdictional error, in finding that the Applicant was an “eligible person” within the meaning of s 19(2) of the Act, and for the purposes of s 22 of the Act in relation to an extradition offence of war crime established by s 165 of the Hungarian Criminal Code Act IV of 1978 in conjunction with s 11 para 5 of Prime Minister’s-Decree No 81/1945 (II.5) ME on the Peoples Jurisdiction enacted by Act VII of 1945 amended and complemented by Decree No 1440/1945 (V.1.) ME (“war crime”).
Particulars
(a)The Applicant repeats Particular 1(a).
(b)The Applicant repeats Particular 1(b).
(c)The Applicant repeats Particular 1(c).
(d)The Applicant repeats Particular 1(d).
(e)In apparently concluding that the Applicant satisfies the definition of an “extraditable person”, and hence “eligible person”, the Minister failed to have proper regard to the legal distinction between preliminary investigative process and the more advanced state of affairs where charges are laid or are imminent, and was inferentially misled to an incorrect understanding of the relevant legal concept of “accused” by the reference in Departmental Attachment C (para 262; also para 190) to the Australian High Court authority of Director of Public Prosecutions (Cth) & the Republic of Austria v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 which is cited for the proposition that extradition legislation must be construed so as to recognize differences between the common law and continental systems of criminal law, but omitting reference to the passage from Gummow J in Kainhofer (at [88]), cited in the Applicant’s Supplementary Submission dated 26 October 2009, in which his Honour made the above relevant distinction is made. (sic)
(f)As the Applicant was not an "extraditable person" when the request for his extradition was made to the Australian Government, proceedings against him under the Act were and are contrary to the requirements of the Act and should not have been commenced, and he should not have been found to be an “eligible person” by the Magistrate for the purposes of sub-ss 19(2) and (9) of the Act.
(g)As the Applicant was incapable of being found to be an “eligible person” under sub-s 19(2) of the Act the Minister had no power to make a determination for his extradition under s 22 of the Act.
(h)In consequence, the Minister’s determination that the Applicant should be surrendered for extradition is not authorised by law and is a nullity.
4.The Minister further erred in law and made a jurisdictional error, in determining that the Applicant was eligible to be surrendered under s 22 of the Act, in relation to a “qualifying extradition offence” of war crime, and that determination was not authorised by the Act and was a nullity.
Particulars
(a)By virtue of Article 2 paragraph 5(a) of the Extradition Treaty between Australia and the Republic of Hungary 1995 (“Extradition Treaty”), as incorporated into the Act under of s 11 of the Act and the Extradition (Republic of Hungary) Regulations 1997, the alleged war crime was not an offence under Hungarian municipal law at the time (8 November 1944) when the conduct constituting the offence is alleged to have occurred.
(b)“War crime” was not made an offence under the Hungarian Criminal Code until legislation of Hungary enacted by Decree No 81/1945 (1945 Decree) which was purportedly given retrospective effect in Hungary by s 1 of the 1945 Decree.
(c)Relative to extradition requests by the Republic of Hungary, the effect of Article 2 paragraph 5(a) of the Extradition Treaty is that conduct which was not a criminal offence under Hungarian law at the time the conduct occurred is not an "extradition offence", as defined by s 4 of the Act.
(d)Unlike other international instruments such as the European Convention on Human Rights 1950 (ECHR), the International Covenant on Civil and Political Rights 1966 (ICCPR) and the Rome Statute establishing the International Criminal Court (where non-retrospectivity clauses are qualified by an exception in the case of war crimes) the Extradition Treaty contains no such exception.
(e)The alleged offence is therefore not an "extradition offence", and is therefore not an offence in relation to which the Minister may, under s 22 of the Act, order that the Applicant be surrendered to Hungary.
5.The Minister erred in law, in failing to give proper, realistic and genuine consideration to whether, in the exercise of the discretion conferred by Article 3 paragraph 2(a) of the Extradition Treaty, he should refuse extradition, having regard to the fact that the Applicant is a national of Australia, and all other relevant factors. Alternatively, his decision not to refuse extradition was one which no Minister, acting reasonably and giving consideration to those facts could, in the proper exercise of his discretion, make.
Particulars
(a)The Minister had a duty, imposed by Paragraph 2(a) of Article 3, to give primary consideration to the fact that the Applicant is an Australian citizen and national, given that Hungary may request Australia to submit the case to competent authorities in Australia, to consider whether to prosecute the Applicant in Australia.
(b)The Minister fettered the exercise of his discretion and disabled himself from properly and genuinely considering its exercise and the factors relevant to it, purportedly on the ground of a long-standing “policy” that Australia will not refuse extradition on the basis of Australian citizenship alone.
(c)The Minister further fettered the exercise of his discretion by giving undue precedence to Australia’s obligation, under the Extradition Treaty, to respond to the Republic of Hungary's extradition request, without having a balanced or any regard to Australia's other obligations and responsibilities under that Treaty to the Applicant, as an Australian citizen.
(d)In so doing, the Minister failed to take into account the fact that Australia has a primary obligation to afford diplomatic protection to the Applicant, as an Australian national, and to save him from undergoing foreign criminal procedures unnecessarily, if either a Hungarian request is made under Article 3 paragraph 2(a), or Australia of its own motion considers whether, as an Australian national resident in Australia, the Applicant can and should be prosecuted under Australian law for the alleged war crime.
(e)The Minister further failed to satisfy himself as to whether Australia or Hungary had primary responsibility for prosecuting the Applicant, given that the Applicant had ceased to be, by force of Hungarian law applicable in 1944-1945, an Hungarian national, having failed to return to Hungary in response to an official summons to do so.
(f)The Minister should have had regard and failed to have regard to the fact that Australia has a primary obligation to afford the Applicant diplomatic protection, to prevent any unnecessary or disproportionate distress and disruption that his extradition would occasion if removed from Australia; or to the question of whether, as an alternative to Hungarian proceedings, the Applicant might be investigated and (if thought appropriate) prosecuted for the alleged war crime under Australian war-crimes legislation.
5A.The First Respondent erred in law and fact and made a jurisdictional error in deciding that there was no basis for finding that the competent Australian prosecuting authorities, the Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions (CDPP), had not, within the meaning of, and for the purposes of Article 3(2)(b) of the Extradition Treaty, decided to refrain from prosecuting the Applicant for the alleged offence in respect of which extradition is sought, thereby failing to give relevant and proper consideration under section 22 of the Act to whether Australia as the Requested State should refuse to surrender the Applicant for extradition.
Particulars
(a)According to paragraphs 112, 116 and 117 of Departmental Attachment C the AFP, having accepted a referral concerning an allegation of a war crime, considered the possibility of prosecuting the Applicant for an offence under the War Crimes Act 1945 (Cth) and sought advice from the CDPP regarding whether such a prosecution could be initiated in Australia. Upon receiving advice from the CDPP that in the absence of any testimony from living witnesses to support the documentary evidence the CDPP was unable to conclude that there was a prima facie case to support a prosecution under the War Crimes Act, the AFP determined not to proceed further.
(b)Having regard to the exchange of information between the AFP and the CDPP and its outcome, there was in the circumstances an actual or constructive refraining by Australia’s competent authorities from prosecuting the Applicant and. Article 3(2)(b) of the Treaty was therefore engaged.
(c)The First Respondent wrongly took into account the view of the Department (paragraph 118 of Departmental Attachment C) that the decision of the AFP to take no further action did not constitute a ‘refraining’ since it did not entail a positive decision not to prosecute the Applicant, thereby misdirecting himself on the legal meaning of “refrain” in Article 3(2)(b).
(d) By concluding that there had not been a relevant refraining, he failed to consider, as required by Article 3(2)(b), whether he should exercise his discretion, acting on behalf of Australia, to refuse the Hungarian Request and thereby committed a jurisdictional error.
6.The Minister further erred in law, misdirected himself on a fundamental matter regarding whether in the terms of Article 3 paragraph (2)(f) of the Extradition Treaty the Applicant’s extradition would be unjust, oppressive, and incompatible with humanitarian considerations, failed to take into account relevant considerations which he was bound to consider, and failed to properly exercise his jurisdiction under s 22 of the Act.
Particulars
(a)The Minister failed to satisfy himself of the capacity of the Military Division to provide procedures consistent with Australia's and Hungary's international obligations under Article 14 of the ICCPR with its two protocols and other relevant instruments, to ensure a fair trial if the Military Division were to charge and prosecute the Applicant for the offence of war crime.
(b)By virtue of s 11 and sub-paragraphs 22(3)(e)(i), (ii), (iii) and (iv), and 22(3)(f) of the Act, the Minister is required to have regard to the considerations specified in Article 3 paragraph 2(f) of the Extradition Treaty, namely, whether in the relevant circumstances it would be unjust, oppressive, and incompatible with humanitarian considerations to extradite the Applicant.
(c)In issuing the international arrest warrant for the Applicant's extradition to Hungary, the Republic of Hungary relied on the minutes and records of statements made in criminal proceedings before the Hungarian People’s Court in 1946-1947 by the defendants and various witnesses in the trials of a Captain Mader and Lieutenant Nagy, which apparently will be the foundation on which any prosecution of the Applicant will be based. (Departmental Attachment C, para 33).
(d)So far as is known (and it is not contradicted by the Republic of Hungary) the relevant prosecution witnesses, on whose statements the Hungarian military prosecution authorities will apparently rely, are either no longer alive or are not available for examination.
(e)The Applicant has made submissions to the Minister that, if the Hungarian military prosecution authorities intend to rely on documentary evidence of Captain Mader, Lieutenant Nagy, and other witnesses including Jozsef Monori, Pal Marko, Zoltan Imre, and Janos Mahr, the Minister must be satisfied that the Applicant will have an opportunity to confront and question the witnesses, as required by Article 6 of the ECHR and Article 14 of the ICCPR, failing which to extradite the Applicant to Hungary would be unjust and oppressive within the meaning of Article 3 paragraph 2(f) of the Extradition Treaty.
(f)The Minister has also failed to discharge his responsibility of requiring the Hungarian Government to satisfy him that the Applicant will not be subjected to an unfair and unjust trial.
(g)The Hungarian authorities have failed to give an assurance that statements recorded by the People's Court in 1946-1947, coerced by torture, including any by Lieutenant Nagy, would not be produced as evidence in proceedings before the Military Panel, contrary to Article 15 of the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 1984 (CAT)
(h)It is a fundamental requirement of a fair trial in accordance with the above international instruments that the Applicant should have the opportunity and ability to question the above-named witnesses as to whether their statements were voluntary or coerced by threats of torture, induced by promises of leniency, are consistent with other statements by relevant witnesses, or reliable and credible, particularly given that to a large extent the statements are those of alleged accomplices or based on hearsay.
(i)The Republic of Hungary has declined to provide any specific details about whether the named witnesses are alive and available to be called in any proceedings against the Applicant, failed to inform the Applicant or the Australian Government of any alternative procedures for the testing of the voluntariness, reliability, credibility and veracity of the statements of those witnesses, and has given the Minister no assurance as to how, the Military Panel would be able to provide fair procedures and a fair trial if it were to prosecute the Applicant.
(j)The Republic of Hungary has, further, refused and failed to inform the Applicant or the Minister how the Applicant would be able to have a fair trial in accordance with international standards, when he will be unable to access relevant official documentary evidence (destroyed in the time elapsed since 1944) about the movement of his unit of the Royal Hungarian Army that would enable him to establish that he was not in Budapest at the time of the commission of the alleged offence in Budapest.
(k)The Minister, in the absence of such information and assurances and without making any further enquiry, has made his determination that the Applicant should be surrendered for extradition, apparently because the Military Panel is bound by the provisions of the ECHR and ICCPR and that it is therefore not for the Australian Government to enquire into or make judgments about whether the Military Panel and its procedures will, in fact, be able to comply with the international standards for a fair trial (Departmental Attachment C paras 103, 219).
(l)In that regard, the Minister has been misled by the selective reference in the Departmental Attachment C (para 33, dot point 7 and para 190) to the decision of this Honourable Court in Mokbel v Attorney-General for the Commonwealth (2007) 162 FCA (sic-FCR) 278 at [58]-[59], said to be authority that in accordance with the principle of comity a degree of respect is to be accorded by a requested country to the laws and institutions of another country, but omitting reference to Snedden v Republic of Croatia [2009] FCA 30 (a decision of the Full Federal Court to which the Applicant referred in his Supplementary Submissions to the Minister dated 26 October 2009) in which the contrary proposition was stated, namely that Australian court may, in an appropriate case, determine that a country requesting the extradition of an Australian citizen cannot provide a fair and unbiased trial in the event of extradition, and if so, that extradition must be refused.
(m)The Minister, in accepting that “comity” prevents him from considering whether, having regard to the particular evidentiary problems presented by the non-availability of key witnesses, the procedures of the Military Tribunal are actually capable of affording the Applicant a just and fair trial in accordance with relevant international standards has fettered his discretion and abdicated his responsibility to address that question.
(n)The Minister has in that regard asked himself the wrong question: the issue is not whether the Military Division is capable of providing a fair trial because it is bound by the ECHR and ICCPR; it is whether the Hungarian authorities can provide assurances to the Australian Government as to how they can, in fact, afford a fair trial to the Applicant in accordance with the ECHR and ICCPR in all the circumstances.
(o)The Minister has further erred in law and taken into account an irrelevant consideration, namely, that if the Hungarian authorities and the Military Panel fail to comply with the relevant international standards, the Applicant could appeal pursuant to procedures open, under Hungarian law, with the ultimate prospect of appealing to the European Court of Human Rights, and has concluded that he therefore has no responsibility to satisfy himself, before making a decision to extradite, that the Applicant will be able to be afforded a fair trial, complying with the relevant international standards.
Particulars
(oa)Further, the statement in Departmental Attachment C, paragraph 202, that advice received from the Attorney-General's Department's Office of International Law (OIL) (which is summarised in unredacted form in paragraphs 204 and 205 of that Attachment) suggests that there is “no information that establishes that the Military Panel would not be capable of providing a fair trial”, and in paragraph 204 that: "We are not aware of any information to suggest that Hungry does not propose or is unlikely to provide Zentai with a fair trial", is inconsistent with the highly qualified advice given by the OIL that for a trial to be fair the Military Panel could only have regard to documentary evidence that was unsupported by viva voce evidence so long as the documentary material was not the sole or decisive evidence.
(ob)The First Respondent has therefore acted on a legally incorrect view of the apparently unsupported documentary evidence on which the Republic of Hungary proposes to rely (if a trial were to be instituted), and consequently, in the special circumstances of this case, erred in failing to take into account the fact that Hungary has not been able to produce any relevant live witnesses whose testimony would allow testing of the 1940’s documentary records, given that the records cannot, in accordance with international standards of fairness, constitute the sole or decisive evidence for the prosecution.
(p)Contrary to the statement in the Departmental Attachment C, para 210, (that there is no evidence to suggest that Hungary will not afford the Applicant the protections and rights contained in its procedures and practices) there is evidence that the Military Panel, when issuing the international arrest warrant relating to the Applicant in 2005, failed to consider whether the statements and records of the People's Court were capable of being used in any criminal proceedings consistently with the Republic of Hungary's obligations under the ECHR and ICCPR, or whether a prosecution could comply with the requirement of a fair trial according to the standards of the ECHR and ICCPR. The Minister has, in the result, failed to take into account a relevant consideration, namely, that the Military Panel has already failed to comply with the relevant international standards.
(q)The Minister, in relying on Departmental Attachment C, has apparently also been induced to misconceive the nature of the Applicant's submissions regarding the need to confront prosecution witnesses, given that there is objective evidence that the Hungarian prosecution authorities may be incapable of producing critical prosecution witnesses, whose evidence is proposed to be relied on.
(r)The Minister has also failed to have regard to a relevant factor, namely Australia's own international legal obligations under the ICCPR, irrespective of any other obligations of non-refoulement, not to surrender the Applicant, an Australian national, for extradition where there is objective evidence that he may not be afforded a fair trial, and a real risk that there will be a violation of Australia’s international undertakings because of its failure to comply with Article 14 of the ICCPR.
7.In dealing with the Applicant's extradition objection pursuant to s 7(c) of the Act, that he may be prejudiced at his trial by reason of his nationality or political opinions, the Minister failed to give a fair, properly reasoned and informed consideration to the Applicant's claim that the issuance by the People's Court in 1948 of a warrant for his arrest was wholly or in part due to the fact that the People's Court and the Hungarian communist authorities then in power were biased against officers of the Royal Hungarian Army fleeing Russian occupation, so that there is a real risk that the Applicant was sought because of his national and political associations, and that the proceedings of the People’s Court against Captain Mader and Lieutenant Nagy, to the extent that they implicated the Applicant, were influenced and tainted by that consideration.
Particulars
(a)Para 26 & 35 of Departmental Attachment C; states that there is no information in the Department's possession that the Applicant’s prosecution will be influenced by his nationality or political opinion, notwithstanding that the Applicant made a submission relating to the continuing effect of any original prejudice affecting the decisions in 1947-1948 of the People's Court's.
(b)Departmental Attachment C, at para 37, denies that any taint arising from tainted political bias in the minutes and records of the proceedings of the People's Court and the warrant for the Applicant's arrest issued in 1948 is capable of having a continuing operative effect in any contemporary proceedings of the Military Panel.
8.The Minister made an error of law and a jurisdictional error in failing to give proper or any consideration to whether the Military Panel is a court or tribunal that is only occasionally, or under exceptional circumstances, authorised to try persons accused of the offence for which extradition is sought, or to whether to refuse extradition for that reason, as required by Article 3 paragraph (1)(f) of the Extradition Treaty.
Particulars
(a)The Minister failed to address and consider whether, with regard to the jurisdiction of the Military Panel to try offences of the nature of the war crime, the Military Panel is only occasionally authorised to conduct such proceedings, in the legal sense of only being required to exercise its jurisdiction in exceptional circumstances, not commonly encountered within the normal criminal jurisdiction of a court or tribunal.
(b)The Republic of Hungary has failed to provide to the Minister information regarding the statistical frequency with which the Military Panel has conducted proceedings with respect to war crimes, so the Minister is unable to make relevant findings concerning this objection.
(c)Further, given the unusual circumstance that the war crime in question is alleged to have occurred 65 years ago, the Republic of Hungary has failed to provide any assurance to the Minister that in the absence of any witnesses able to give oral testimony confirming statements made for the purposes of the proceedings of the People's Court in 1946-1947, the Military Panel will not adopt exceptional procedures, not complying with relevant international law standards, and not ordinarily used in normal judicial proceedings.
(d)In the absence of such information, the Minister was unable to decide whether the nature of the Military Panel involves such a departure from traditional judicial proceedings as to be excluded from the operation of the Extradition Treaty.
9.The Minister erred in law, and committed jurisdictional error, by failing to take into account relevant considerations when considering whether, in accordance with Article 3 paragraph 2(f), it would be oppressive and incompatible with humanitarian considerations to surrender the Applicant for extradition, given his advanced age (88) and his ill health.
Particulars
(a)The Minister failed to give real and genuine consideration to whether,
(i) given the Applicant's age and medical condition, and
(ii) given the Hungarian Government's concession that the Applicant is only wanted in the first instance for investigation,
there are relatively more appropriate alternatives (which would give full force and effect to “humanitarian considerations”) to surrendering him for extradition to Hungary, such as permitting the Hungarian authorities to conduct their enquiries in Australia, or, if requested by the Hungarian Government, asking the Australian prosecuting authorities to consider whether to charge the Applicant under the Commonwealth Criminal Code.
(b)The Minister further erred in evidently deciding to give greater effect to the fact that any anguish, stress and seriously adverse health impacts upon the Applicant resulting from his extradition, and possible lengthy incarceration in a foreign country, should be “balanced” against the seriousness of the offence and interest of the international community in having a suspected World War II criminal tried before Hungarian courts.
(c)In so doing, the Minister failed to take into account the fact that the Applicant is an Australian national who is entitled to the presumption of innocence, and that the relevant interests of the international community could, proportionately and appropriately, be satisfied by such alternatives.
10.The Minister has also committed a jurisdictional error by taking into account, in his reasoning process, an inaccurate and misleading impression created in Departmental Attachment C, para 214, to the effect that the Minister should have little, if any, regard to the fact that the Applicant would be disadvantaged in his defence, if he were to be charged, by the long passage of time, because the relevant Hungarian authorities were unaware of the Applicant's presence in Australia until brought to their attention in 2004 by the Simon Wiesenthal Centre (whereupon they responded quickly) and further, (impliedly) that this delay was due in part to the fact that the Applicant had changed his name from Steiner to Zentai, thus preventing the Hungarian authorities from seeking his arrest and extradition at an earlier date.
Particulars
(a)The Applicant changed his name from Steiner to Zentai prior to World War II and was officially known by that name by all relevant Hungarian authorities thereafter including, relevantly, in proceedings before the People's Court.
(b)Any delay in pursuing an investigation and prosecution of the Applicant for the alleged war crime cannot be attributed to the Applicant, who lived openly in Western Australia from 1950 under the name of Zentai, by which he had been known when he left Hungary.
(c)His presence in Western Australia was known in the 1980s to the family of Peter Balazs, the victim of the alleged war crime, who claim to have brought it to the attention of a person associated with the Simon Wiesenthal Centre, which was therefore in a position to inform Hungarian or Australian authorities of the Applicant’s presence in Australia at that time.
(d)The Minister made a jurisdictional error by only taking into account (Departmental Attachment C paras 273-279) the fact that the Hungarian authorities have acted in good faith since 2004, without having regard to the earlier opportunities that the Hungarian Government could have had if Hungarian authorities or other informants and agencies had acted more diligently in the past, and by failing to take into account, and give proper weight to, the enormous prejudice to the Applicant occasioned by the delay.
(e)The Minister has, also, apparently taken into account, as a reason not to refuse surrender, the wrong and misleading statement of fact (Departmental Attachment C, para 275) that the Applicant “has lived under the false assumption that [he is] no longer wanted for prosecution”.
11.For the reasons stated in the above grounds, the Minister's decision was so unreasonable that it went beyond his jurisdiction under s 22 of the Act and is a nullity and of no legal effect,
12.The Minister further erred in law, and failed to comply with a fundamental legal requirement, by refusing to provide to the Applicant a statement of his relevant findings and the reasons for his determination under s 22 of the Act, in consequence of which his determination is a nullity and of no legal effect.
Particulars
(a)Section 22 of the Act requires the Minister, in exercising his statutory discretion and powers, to make various findings and to be satisfied regarding matters specified in that section.
(b)By necessary implication, for the purpose of judicial review of his decision, if requested by the person subject to the order for extradition, the Minister must provide a statement of relevant findings and reasons.
(c)On 17 and 19 November 2009, the Applicant’s solicitors requested the Attorney-General's Department to provide a statement of the Minister's reasons for decision. By letter dated 20 November 2009 the Department replied that no such statement would be provided.
(d)The refusal constitutes a failure to comply with the Act, and therefore of itself vitiates the Minister's decision, and is a ground for quashing it.
EVIDENCE

It is unnecessary to discuss, in detail, all five affidavits in support of Mr Zentai’s application. His solicitor has annexed a number of documents. The first is an unredacted form of Attachment C. This was the subject of consideration in Zentai v Honourable Brendan O’Connor (No 2). The portions that are now disclosed, following orders I made in that case, gave rise to a further amendment made to the application dealing specifically with the question of whether or not the Australian authorities decided to refrain from prosecuting Mr Zentai for the alleged offence (the new ground 5A).
Also produced was a copy of the submission in relation to the extradition of Mr Zentai provided to the Commonwealth Minister for Justice and Customs prior to the Minister signing a Notice of Receipt of Extradition Request under s 16 of the Act. That submission was dated 8 July 2005. It was produced by the Commonwealth in response to a request by Mr Zentai’s solicitors.
Also produced was the copy of Attachment K to the Department’s submission to the Minister for the purposes of determining whether Mr Zentai was to be surrendered to Hungary under s 22 of the Act. It was advice from OIL dated 5 November 2009, again, produced following a request from the Commonwealth.
Also produced was a copy of written submissions from Mr Mark Ierace SC to Ms Kirsten Law, Director of Legislation and Policy Section, International Crime Cooperation Division, Commonwealth Attorney-General’s Department of 21 September 2009. (These have been briefly referred to above). Mr Zentai’s solicitors became aware that Mr Ierace SC, Senior Public Defender of the Public Defender’s Office in New South Wales, Visiting Fellow in International Criminal Law at the University of New South Wales and former prosecutor in the UN International Criminal Tribunal for the former Yugoslavia in The Hague had made the submission to the Department as a publicly available document on the internet. It would appear that the submission was in the possession of the Commonwealth (the International Crime Cooperation Division of the Department) at the time it was advising the Minister in relation to the s 22 determination.
The submission suggests that the grounds of refusal contained in s 7 of the Act should be extended to include the right to a fair trial in a procedural sense, noting that fairness and respect for human rights were the principles underlying the particular bases for an extradition objection under the Act. The absence of a legislative basis to contest extradition where the trial in the extradition country does not meet basic procedural requirements of a fair trial was an omission which required attention, according to the submission. That in turn was directly related to the application of Mr Zentai. The submission continued:
If extradited, Zentai would be tried before a military tribunal, presumably because at the time of the alleged offence he was a member of the Hungarian Military, albeit fascist puppet forces overseen by the Nazi occupiers.
…
The compelling aspect of the case is that there are no living witnesses to the crime. Two accomplices were arrested shortly after the war, and made confessions which they later complained were extracted by torture; apparently a credible claim, given the notoriety of the police unit and particular prison where they were held at the time. Both are deceased. Consequently at any trial the prosecution case would not include any live testimony of contemporaneous witnesses or, as I understand it, any forensic evidence linking Zentai to the killing, or confessional evidence attributed to him.
The submission went on to observe that such a trial would contravene international human rights instruments including the ICCPR which prescribes minimum guarantees and full equality for everyone facing a criminal charge to be entitled to have the witnesses against him or her examined and to obtain the attendance and examination of witnesses on his or her behalf on the same conditions as witnesses against him or her. That provision in the ICCPR (Art 14(3)(e)) was replicated in Art 6(3)(d) of the European Convention of Human Rights (the ECHR).
Attachment C will be the subject of considerably more detailed analysis in the course of discussion of the grounds below.
Senior counsel for Mr Zentai was critical of Attachment C submitting that the reasoning in it was teleological in the sense that it was all directed to the one conclusion:
It’s as if the author of attachment C had decided what outcome was required and then went through and dismissed each and every consideration which should properly have been taken into account’.
He observed at one point that:
For example in paragraphs 165, 169, 173 and 179, the department tends to diminish and trivialise the physical aspects of the applicant’s medical condition, and there’s more to it than that, that is, trivialising issues of emotional impact and stress of travel and awaiting and undergoing trial there. All of these matters, collectively, in our submission, point irresistibly to it being inconsistent or incompatible with humanitarian considerations to send this man to Hungary for investigation or even trial, if there were to be a trial, … it deals with cognitive impairment and says:
The department doesn’t consider Zentai’s claims he may suffer from a cognitive impairment which may or may not impair his ability to properly defend himself at trial are matters that should weigh heavily on your discretion because they’re matters for Hungary, which has processes that address the issue.
So there’s not even a question of whether, on balance, this presents a problem. Not matters which should weigh heavily on your discretion, what is being said here connotes a misinterpretation of the requirements or the discretionary considerations in the treaty. It can only be that because to say that the fact that a man has cognitive impairment, as well as other physical disabilities, which may prevent him from fairly defending himself, shouldn’t weigh heavily on the discretion raises the question, well, what should?
The separate advice from OIL on the questions of whether Hungary was a party to any relevant treaties and whether there was any relevant international jurisprudence regarding Hungary’s capability of providing a fair trial and regarding adequacy of medical care available in Hungary’s prison system was a detailed document (of 21 pages). Its content also falls for consideration in the course of the submissions advanced to support the grounds of appeal.
GROUNDS CONSIDERED INDIVIDUALLY
Ground 1 – the applicant is not ‘accused’ of an offence under Hungarian law and hence is not an ‘extraditable person’ within the meaning of the Act
Ground 1 is interconnected with grounds 2 and 3. They each ask two questions. The first is whether Mr Zentai was accused of an offence, rather than wanted for interrogation; and the second is, if he was wanted only for interrogation, does it follow that he is not an ‘eligible person’?
There is a difficulty in relation to these two questions in that as originally framed, the argument was that it was impossible for Mr Zentai to be an eligible person and, therefore, the entire process was invalid and required quashing. However, the 2009 information (the material in support of the argument that Mr Zentai was wanted only for interrogation), was not before the Minister when the s 16 direction was made. I will return to this point.
It is not open to the Attorney-General to issue a notice under s 16 of the Act to direct a magistrate to commence proceedings under s 19 of the Act to determine whether a person is eligible for extradition to a requesting country unless the person is an ‘extraditable person’ within the meaning of s 6 of the Act. Section 6 of the Act provides as follows:
6 Meaning of extraditable person
Where:
(a)either:
(i)a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or
(ii)a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:
(A)there is an intention to impose a sentence on the person as a consequence of the conviction; or
(B)the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;
(b)the offence or any of the offences is an extradition offence in relation to the country; and
(c)the person is believed to be outside the country;
the person is, for the purposes of this Act, an extraditable person in relation to the country. (emphasis added)
To be an extraditable person within s 6(a) of the Act, a warrant must be in force relevantly for his arrest in relation to an offence against the law of the requesting country, in this case, Hungary that he is accused of having committed before or after the commencement of the Act. ‘Accused’, Mr Zentai argues, means wanted with regard to criminal proceedings that have progressed beyond the purely investigative stage.
In Kainhofer (at [569]), Gummow J drew the relevant distinction between proceedings which are ‘merely investigative or preliminary’ as compared with those where ‘one can suspect a person in a manner which is the product of a more advanced state of affairs, in particular, accusation by the laying of charges’. As this is an important consideration I have set out the following passage in the judgment at some length (at 563‑564) (footnotes omitted):
However, in any event, I would not construe the term "accused" as including that which is described in the last sentence in the extract set out above from Muller's Case, namely, any proceeding in Austria in which evidence has been or might lawfully be taken with a view either to a future criminal prosecution or to making a decision as to whether to institute a criminal prosecution.
First, the requirement in s 6 and s 19 for there to have been in force or issued by the extradition country a warrant for the arrest of the person in question marks the modern legislation off from that considered in the 19th century authorities to which I have referred. The course of legislative history which I have outlined indicates an increasing specificity in the procedures of the country requesting extradition. To treat as "accused" a person against whom there were on foot merely inquiries preliminary to the institution of a prosecution would be contrary to that trend.
Secondly, in respect of aliens present in Australia whose surrender is sought by extradition processes, considerations of personal liberty are at stake. In a classic judgment upon extradition law delivered in the Supreme Court of the United States, the point was made:
"[U]nder our system of laws and principles of government, so far as respects personal security and personal freedom, I know of no distinction between the citizen and the alien who has sought an asylum under them."
Hence, habeas corpus is available to an alien who has been wrongfully arrested, even by orders of the Crown. It is reasonable to expect that the legislature would express clearly an intention to authorise the executive surrender of such persons, not necessarily for trial, but rather to facilitate inquiries by the proper authorities in the extradition country as to whether a prosecution should be instituted.
Thirdly, the term "extraditable person", as defined in s 6, is expressed as applying "for the purposes of this Act", that is to say, not only for the purposes of extradition from Australia (Pt II, ss 12-27), but also extradition to Australia from other countries (Pt IV, ss 40-44). This suggests that the phrase in the definition "the person is accused" has, with due allowance for the differing legal systems that may be involved, a broadly similar operation. Section 43 of the Act empowers the Attorney-General to authorise the taking of evidence in Australia for use in any proceedings for the surrender to Australia of a person suspected by the Attorney-General of being an "extraditable person" in relation to Australia. Section 40 states that a request by Australia for the surrender of a person from a country, other than New Zealand, in relation to an offence against a law of Australia "of which the person is accused or of which the person has been convicted", shall be made only by or with the authority of the Attorney-General. Further, where a person is surrendered to Australia in relation to an offence against a law of Australia "of which the person is accused or of which the person has been convicted", that person shall be brought into Australia and "delivered to the appropriate authorities to be dealt with according to law" (s 41).
It would be an unlikely construction of these provisions that the references therein to persons accused of an offence against a law of Australia were treated as extending to cases merely where inquiries were on foot to decide whether to institute a prosecution.
Further, the notion of reciprocity between Australia and other countries is, on the face of the statute, fundamental to the legislative scheme. A principal object of the Act, stated in s 3, is to enable Australia to carry out its obligations under extradition treaties and another is to facilitate the making of extradition requests by Australia. The Act in numerous provisions (eg, ss 6, 7, 10, 40, 41) distinguishes between those accused or prosecuted and those convicted. One would expect a clear indication in the statutory text if, by reference to "accusation", Australia was to give, as a matter not only of degree but of kind, greater recognition to the criminal processes of other countries than that which it could ever seek for itself.
On the other hand, I would not accept the proposition that there must be an authorised public accusation of equivalent effect to what in common law systems would be treated as an indictment or the laying of an information. Care must be taken to allow, within the limits mentioned earlier in these reasons, what in the United States was called a "reasonable cosmopolitan interpretation". In particular, differences between denomination or categorisation of procedures should not be given too great a weight. The fundamental question is whether the person whose extradition is sought under Pt II is one in respect of whom there has been taken by the competent authorities in the extradition country a decision to invoke the operation of the criminal law by the taking of whatever steps are necessary to initiate what might fairly be described as a prosecution.
One of the points made for Mr Zentai is that this distinction made by Gummow J, although mentioned in passing in submissions made on behalf of Mr Zentai to the Department, was not drawn or adequately drawn to the Minister’s attention in Attachment C.
In addition to this requirement, to be liable for extradition under the Treaty, the person must in accordance with Art 1 of the Treaty be ‘wanted for prosecution’ and, pursuant to Art 5(2)(a) be ‘accused of an offence’.
After the Attorney-General has issued a notice to a magistrate under s 16 of the Act in relation to an ‘extraditable person’, the magistrate is required by s 19 to conduct proceedings to determine whether the person is an ‘eligible person’. If the magistrate makes that finding, as her Honour did in this instance, the magistrate is then required to make an order under s 19(9) committing the person to prison. Each of these orders is a jurisdictional precondition to the exercise by the Attorney-General of a power under s 22 to surrender the person for extradition.
For Mr Zentai, it is argued that the Attorney-General (or his or her delegate, in this case, the Minister) can only make a determination under s 22 of the Act to surrender a person for extradition if, relevantly:
(a)there is a relevant ‘qualifying extradition offence’ in relation to which a magistrate or a court, pursuant to s 19 and s 21 of the Act respectively, has conducted final proceedings, as the case requires, and determined that the person was eligible for surrender within the meaning of subs 19(2) of the Act;
(b)the person is therefore an ‘eligible person’ who has been committed to prison by an order of the magistrate made under subs 19(9) of the Act, or confirmed on review under subs 21(2);
(c)the Attorney-General is satisfied that there is no extradition objection in relation to the offence;
(d)where, because of s 11, the Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:
(i)        surrender of a person in relation to the offence shall be refused; or
(ii)       surrender of the person in relation to the offence may be refused;
in certain circumstances
and the Attorney-General is satisfied:
(iii)      where (i) applies – that circumstances do not exist; or
(iv)where (ii) applies – either that the circumstances do not exist or that they do exist but that, nevertheless, surrender of the person in relation to the offence should not be refused; and
(e)the Attorney-General in his or her general discretion considers that the person should be surrendered in relation to the offence.
In the argument as initially framed on behalf of Mr Zentai, it was asserted that the Attorney-General acting through his delegate, the then Minister for Justice and Customs (joined as a fifth respondent by way of amendment at the commencement of the hearing) erred in law and fact and misdirected himself on a fundamental matter of law and made a jurisdictional error in deciding that Mr Zentai was an extraditable person and on that basis issuing on 8 July 2005 pursuant to s 16 of the Act a Notice of Receipt of Extradition Request.
This argument contends that to meet the statutory criterion under the Act of being ‘accused’ and the requirement in terms of the Treaty of being ‘accused of an offence’ or ‘wanted for prosecution’, an objectively verifiable administrative step of substance equivalent to the institution of criminal proceedings to determine guilt and punishment must occur. This submission is made notwithstanding that some allowance must be made for procedural differences between inquisitorial continental civil law systems such as that of Hungary and of common law systems as in Australia regarding process of investigating and prosecuting criminal offences.
For Mr Zentai it is argued that where the prosecuting authority is merely conducting investigative inquiries that are at a preliminary stage with no decision made concerning whether there is a sufficient evidentiary or factual basis to proceed to prosecution, the statutory criterion cannot be satisfied.
In Black’s Law Dictionary ‘accuse’ means ‘to charge (a person) judicially or publicly with an offence; to make an accusation against’, and ‘accused’ means:
a person who has been blamed for wrongdoing; especially a person who has been arrested and brought before a magistrate or has been formerly charged with a crime (as by indictment or information).
Similar definitions appear in the Macquarie Australian Dictionary (3^rd ed 1997).
Although the criminal law procedures of Australia and Hungary are quite different, the distinction between someone being ‘wanted for prosecution’ and merely being wanted for investigation in the sense that matters have not advanced to a stage where a decision can be made to institute a prosecution, is applicable also to extraditions under European Union law.
For Mr Zentai, it is contended that it is apparent from English decisions that the criterion of being ‘wanted for prosecution’ in European jurisprudence is equivalent to the notion of being ‘accused’ (Jason McGoldrick and Michael Turner v Central Court, Pest (McGoldrick-Turner) [2009] EWHC 2816 (ADM), per Collins J (at [25]); Trenk v District Court of Pizen-Mesto, Czech Republic [2009] EWHC 1132 (Admin) (at [18]) per Davies J). The distinction drawn in these cases between investigation and prosecution accords with the distinction made by Gummow J in Kainhofer.

The Commonwealth argues that many of Mr Zentai’s review grounds, in effect, allege that the Minister’s decision was not ‘proportionate’ having regard to the circumstances of the case and the impact on Mr Zentai’s personal liberty and rights. Proportionality has no role to play in the scheme created by the Act: Vasiljkovic (at [41]).
Further, the Commonwealth argues, Mr Zentai’s so called unreasonableness is nothing more than an assertion that the Minister failed to give proper weight to a range of competing considerations. Such an assertion does not constitute Wednesbury unreasonableness: Foster 164 ALR 357 per Drummond J (at [73]).
Mr Zentai has accepted that invalidity on the Wednesbury grounds is extremely limited and that the impugned decision must be verging on absurdity. However, he submits that given the various ‘egregious’ errors identified in the submissions of Mr Zentai, those conditions have been satisfied in this case.
In Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat & Live-Stock Corporation (1990) 96 ALR 153, Gummow J considered a Wednesbury argument in the context of the ADJR Act, noting (at [45]) that the reference in para 5(1)(e) of the ADJR Act to an improper exercise of a power is to be construed as including a reference of an exercise of a power ‘that is so unreasonable that no reasonable person could have so exercised the power’: para 5 (2) (g). His Honour observed:
This provision is drawn from the ground of review at general law propounded by Lord Greene M.R. in Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234; see Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 41. It is fair to say that in recent times, in this country there has been a greater willingness to grant review of administrative decisions on this ground. The trend is exemplified by Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 63 ALJR 561 and Luu v Renevier (1989) 91 ALR 39 at 47-51. However, as has been pointed out, the result in the High Court decision might have been reached by a more direct route, namely that there had been an error of law in construing the term "refugee": see (1990) 64 ALJ 95. In any event, there is force in the criticism by Dr Allars that both Lord Greene's formulation of unreasonableness and subsequent attempts to explain or amplify it have been "bedevilled by circularity and vagueness" (Allars, "Introduction to Australian Administrative Law", 1990, para. 5.52).
His Honour continued (at [49]-[50]):
49. In her recent work, to which I have referred, Dr Allars seeks to instil a measure of order into the authorities dealing with the Wednesbury test by identifying three paradigm cases of unreasonableness. All of them are consistent with a view of Lord Greene's "doctrine" as rooted in the law as to misuse of fiduciary powers; see Grubb, "Powers, Trusts And Classes of Objects", (1982) 46 Conv. 432 at 438. The three "paradigms" are outlined in paras. 5.54-5.57 of Dr Allars' work. The first involves the capricious selection of one of a number of powers open to an administrator in a given situation to achieve a desired objective, the choice being capricious or inappropriate in that the exercise of the power chosen involves an invasion of the common law rights of the citizen, whereas the other powers would not. The second "paradigm" involves discrimination without justification, a benefit or detriment being distributed unequally amongst the class of persons who are the objects of the power. It is the third "paradigm" which the applicant would seek to attract to the facts of the present case. In effect, the submission is that on the facts as I have detailed them, the exercise of power by withdrawing the applicant's approval was out of proportion in relation to the scope of the power. A decision which provides an example of such disproportion is the decision of Burchett J. in Edelsten v Wilcox (1988) 83 ALR 99 at 114. An example of a case which fell on the other side of the line is the decision of the Full Court in Wouters v Deputy Commissioner of Taxation (N.S.W.) (1988) 84 ALR 577 at 584-585.
50. In the circumstances of the present case, the Corporation was bound by s. 4 of the Act to exercise its powers only for the purposes of promoting, controlling, protecting and furthering the interests of the Australian live-stock industry in relation to the export of live-stock from Australia. How it discharged that task in a given situation was very much a matter for judgment under all of the circumstances. If it had been necessary to decide the issue, in the circumstances of this case, as I have outlined them, I would not have characterized [the] decision as one in which he acted in such a disproportionately arbitrary manner as to attract review on Wednesbury grounds.
I have addressed the grounds of review individually. Some I consider to be made out, others not. In those upheld, I have taken into account the totality of considerations affecting the exercise of the discretion in this unusual case. While I consider to do so is appropriate on those individual grounds, I do not consider, putting those specific grounds aside, that the s 22 decision to surrender Mr Zentai for extradition is sufficiently irrational, capricious or so unreasonable that no reasonable person could have made it so as to satisfy a ground of review on a Wednesbury unreasonableness basis.
It follows that this ground is not made out.
Ground 12: failure to give reasons
Mr Zentai argues that the Minister further erred in law and failed to comply with the fundamental legal requirement by refusing to provide him with a statement of his relevant findings and reasons for the determination under s 22 of the Act in consequence of which the Minister’s determination is a nullity and of no legal effect.
It will be recalled that although the Minister received a large amount of information including (without attachments) Attachment C, that his decision was constituted in circling the word ‘approved’ and signing and dating the Minute. This practice is customary. By referring to the simplicity of that aspect of the process, no criticism is intended at all, at least from my perspective.
It is common ground that on 17 and 19 November 2009 Mr Zentai’s solicitors requested the Department to provide a statement of the Minister’s reasons for his decision. By a letter dated 20 November 2009, the Department replied that no such statement would be provided.
Mr Zentai refers to s 22 of the Act and the obligation of the Attorney-General to determine a number of matters such as whether there is an extradition objection. He argues that while neither s 22 of the Act nor other relevant general acts such as the ADJR Act expressly requires the Minister to provide a statement of reasons, the Minister in exercising his statutory discretions and powers is under a duty to make various findings and to be satisfied regarding matters specified in that section. Therefore, it is contended, that by necessary implication for the purpose of judicial review of his decision, the Minister must provide a statement of relevant findings and reasons if requested by the person subject to the order for extradition.
Mr Zentai argues that unless a Minister records findings with respect to such a decision, a reviewing court will not be able to judge whether his or her actions are lawful or not. The failure to provide reasons in that context leaves the decision-maker open to the claim that he or she has failed to exercise his or her jurisdiction in accordance with the statute. Such a conclusion can be particularly drawn where having regard to the materials before the designated functionary there is reason to infer that the functionary fell into error and exceeded his or her authority by identifying a wrong issue, asking the wrong question, ignoring relevant material, relying on irrelevant material or, at least in some instances, making an erroneous finding or reaching a mistaken conclusion thereby affecting the purported exercise of power. Reliance is placed on the observations of Dixon J, as his Honour then was in Avon Downs Pty Ltd at 360:
His decision … is not unexaminable … Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was put before him, be found to be capable of explanation only on the ground of some such misconception.
It is argued that the refusal to furnish reasons is said to constitute a failure to comply with the Minister’s duty under the Act and therefore, of itself, vitiates the Minister’s decision. That provides a ground for quashing it and if appropriate the matter should be reconsidered and a fresh decision made by the Attorney-General.
The Commonwealth, correctly in my view, observes that the Minister was under no common law obligation to provide a statement of reasons and that there is no general rule of the common law or principle of natural justice requiring reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests or defeat the legitimate or reasonable expectations of other persons: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 662 where Gibbs CJ said (footnotes omitted):
With the greatest respect to the learned judges in the majority in the Court of Appeal, the conclusion which they have reached is opposed to overwhelming authority. There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons. That this is so has been recognized in the House of Lords (Sharp v Wakefield; Padfield v Minister of Agriculture, Fisheries and Food) and the Privy Council (Minister of National Revenue v Wrights' Canadian Ropes Ltd.); in those cases, the proposition that the common law does not require reasons to be given for administrative decisions seems to have been regarded as so clear as hardly to warrant discussion. More recently, in considered judgments, the Court of Appeal in England has held that neither the common law nor the rules of natural justice require reasons to be given for decisions of that kind: Reg. v Gaming Board; Ex parte Benaim; Payne v Lord Harris. It has similarly been held that domestic tribunals are not bound to give reasons for their decisions; see McInnes v Onslow-Fane and earlier authorities collected in Pure Spring Co Ltd v Minister of National Revenue.
Moreover as observed by Drummond J in Foster 164 ALR 357 (at [66]), the correct balance in circumstances of no reasons can be seen in the following way:
The Minister has not given any reasons for her decision of 30 March 1999. She is not obliged to do so. But as Watkins LJ pointed out in R v Secretary of State for the Home Department; Ex parte Sinclair [1992] Imm AR 293 at 301, while the failure to give reasons where there is no obligation to do that does not of itself attract judicial review of a minister’s surrender decision, the absence of reasons does not necessarily leave the decision immune from such a challenge. A failure to give reasons when the evidence shows the advice given to the minister did not advert to a relevant consideration leaves uncontradicted the inference that that consideration was overlooked when the decision was made.
The Commonwealth contends that the statutory implication pleaded in particular (b) to ground 12 is untenable. The implication is not supported by the words of s 22 of the Act. the implication would be inconsistent with the exclusion of the application of the ADJR Act including the obligation in that Act at s 13 to provide reasons.
In my view, the Commonwealth is correct in this submission and this ground cannot succeed.
CONCLUSION
The Court is not empowered to substitute its view for that of the Minister. The only function of this judicial review is to consider whether the process adopted by the Minister accorded with requirements at law.
The Minister circled ‘approved’ and signed and dated a Minute. That was his decision. It is a practice which is entirely customary. The Minister was not required to give reasons for his decision to surrender Mr Zentai for extradition.
He did, however, have extensive advice. The parties have proceeded, as I have, on the premise that the extensive advice to the Minister was information on which he could rely if he so chose.
Whether he did or not, the absence of reasons leave the inference uncontradicted that to the extent considerations were not addressed in that advice, that he did not take them into account. This is relevant only where he was actually required to consider certain matters. To the extent that the advice contained errors, rather than omissions, the position is more complex. The occasional error would be inconsequential largely because it would never be known whether or not the Minister relied on that particular error. As long as it could be seen that it was open to him, on the advice, to exercise his discretion in accordance with the Act, that would completely answer any challenge in the review process.
However, in my view, at least those errors which are so central to the issue under consideration that they go to the heart of the statutory objects, are in a different category. An entirely hypothetical example would be this. If by the time the Minister’s surrender decision was to be exercised, it came to light that the requesting country accepted that it had sought extradition of entirely the wrong person, the completely wrong person would not be extraditable just because earlier steps in the process had not revealed such an error.
An equally fundamental error would include the fact that Mr Zentai is simply not charged at all with any offence and that the offence of which he is suspected never existed at the relevant time. Such errors which go to the heart of the statutory object are not just merits considerations arising in exercise of a discretion but jurisdictional preconditions to be satisfied before the Minister can exercise his power under the Act. The Act permits extradition of people accused of an offence, not suspected of an offence. The offence (not the conduct constituting the offence) must have existed at the time alleged. To surrender a person for extradition where those basic requirements are not satisfied is beyond power.
A challenge is also made, in any event, to the exercise of discretion by the Minister. To be relieved of the consequences of a surrender for extradition on this basis would be rare indeed. The authorities discussed above emphasise the well established paramount importance of Australia’s treaty obligations. Those obligations in the area of extradition are strictly observed. They arguably assume even greater importance in the case of War Crimes. In addition a common sense degree of latitude and flexibility is necessary to accommodate co-operation between different legal systems. There is a presumption that legal systems of sovereign treaty states will conform both with their own domestic requirements and with international law obligations. The discretion to be exercised is entirely a matter for the executive, not the judiciary, subject only to it being exercised within jurisdiction.
Exceptional features of Mr Zentai’s situation set it apart from any precedent. Shortly stated such features, taken as a whole – not individually - are these.
·Mr Zentai will be 89 years of age in October.
·He has lived openly in Australia for over 58 years.
·The events on which he is to be questioned occurred 66 years ago.
·He did not change his name after coming to Australia (as was unfortunately suggested to the Minister).
·He is in particularly frail health – to the point where the realistic possibility of severe if not extreme health consequences were he extradited and imprisoned could not be excluded.
·He is and has been for 58 years, an Australian citizen, arguably only an Australian citizen, rather than also a Hungarian citizen.
·He is not charged with anything in any conventional sense but is wanted (albeit under arrest and with imprisonment) for questioning due to suspicions held, yet the original s 16 notice and the magistrate’s s 19 order were based on an assumption that he was actually accused of committing a war crime.
·War crime, in any event, did not exist in Hungary at the date it was allegedly committed and the Treaty proscribes retrospectivity with no exception for War Crimes.
·No earlier steps have been taken in the 66 year period to secure his extradition despite the fact that he was living openly in Australia.
·There are apparently no live witnesses to the alleged events.
·Official documents which Mr Zentai claims could have proven his innocence apparently (perhaps unsurprisingly) no longer exist.
·The statements that are apparently relied upon (now being over 60 years old) were secured in arguably questionable circumstances under a particularly harsh Communist regime.
·Although it was open to them to do so, Australian authorities understandably, due to lack of evidence, considered but refrained from prosecuting Mr Zentai. (The Minister was imperfectly advised that they had not refrained).
Other features which, added to the totality of factors, warrant consideration but are not necessarily so unusual are these:
·Critically (and although the Minister was not adequately so advised), it has always been open under provisions in the Treaty, to refuse to surrender Mr Zentai but, if requested by Hungary, to submit him for prosecution in Australia for the same offence – a process seemingly tailor made for an exceptional case of this nature.
·The specific means by which international treaty obligations of a fair trial, including the entitlement to question witnesses will be observed, are unknown as no detailed inquiries have been made on those topics. This is in circumstances where it would not have been difficult to do so, the potential consequence to Mr Zentai was dire and the Treaty contemplates such inquiries being made.
·Conditions in Hungarian prisons, the availability of bail and the availability of health care are also topics on which no detailed knowledge has been acquired as inadequate inquiries have been made on those topics. This is in circumstances where it would not have been difficult to do so and the potential consequence to Mr Zentai was dire and the Treaty contemplates inquiries being made.
In Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 (at 11-15), Sheppard J. observed that:
In case this judgment should be read by persons not familiar with the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth), I should emphasise that this Court has no power to review the merits of a case of this kind. Whether an application for resident status is granted or refused is a matter for the Minister and appropriate officers of his Department. The court's power is supervisory in nature. It obliges the court to ensure that any decision made by the Minister or one of his delegates is made according to law. If it is, the court has no jurisdiction to interfere.
…
In order to endeavour to demonstrate that this case had not been dealt with according to law, counsel for Mr Hindi said that the material in evidence disclosed that there had been no proper or separate consideration of the matters relied upon by Mr Hindi either when the ultimate decision was made on 4 August 1987 or when the Minister's delegate considered the matter after the Panel had made its recommendation. It should be observed that it is not open to Mr Hindi to challenge any decision except the one made on 4 August 1987 which was notified to him in the letter to his solicitors dated 26 August 1987. Indeed that is the only decision of which the amended application seeks review. But what counsel for Mr Hindi has submitted is that there was no separate consideration given to the matter once the Panel had made its recommendation. The Minister's delegate was said to have "rubber stamped" the Panel's decision and the decision to maintain that decision reached on 21 August 1987 was said to have been made, when analysed, upon the basis of what is contained in the Panel's recommendation without any separate attention being paid to a number of new matters which were raised in the solicitor's letter written on 12 June 1987.
The way in which this submission was fitted into the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) was to claim that the evidence revealed that the delegates who dealt with the matter left relevant considerations out of account and exercised their discretion in accordance with a rule or policy (the policy contained in the Handbook) without regard to the merits of the particular case: see s 5(1)(e) and 2(b) and (f) of the Administrative Decisions (Judicial Review) Act.
In support of his submissions counsel relied upon two unreported decisions of single judges of this Court and on authorities referred to in those judgments. The two decisions are Brelin v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Wilcox J, 14 May 1987) and Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987). Both cases involved situations in which it was submitted that inadequate consideration had been given to applications. In the Brelin case Wilcox J said of the criticisms made of the Panel's consideration of the matter (at 9-10):
"These criticisms do not go to the weight of the various factors to be taken into account. Weight was for the Panel and, ultimately, for the Minister to determine. Rather they concern the question whether the Panel gave to the application proper and adequate consideration: see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1053; or, expressing the question another way, whether there was `a real exercise of discretion': see Associated Picture Houses Ltd v Wednesbury Provincial Corporation [1948] 1 KB 223 at 228."
Earlier his Honour indicated that the provision of the Administrative Decisions (Judicial Review) Act upon which reliance had been placed was s 5(2)(b), namely, that the Minister's delegate failed to take into account a relevant consideration (at 8-9).
In Kahn's case, Gummow J reached the conclusion (at 12) that on the whole of the evidence in that case, the applications in question had not each been given "proper, genuine and realistic consideration upon the merits". He relied on s 5(2)(f) of the Administrative Decisions (Judicial Review) Act which provides a ground for judicial review where there has been an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. Gummow J said (at 11-12):
"[W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy: Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169 at 195; Kioa v West (1985) 159 CLR 550 at 604; Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 at 4992-494. That consideration included, in respect of each application, the effect or likely effect of refusal of the application upon members of the family; cf Tabag v Minister for Immigration and Ethnic Affairs (1982) 70 FLR 61 at 67, referred to by Wilson J in Kioa v West (supra) at 604. The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense: Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 184; Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 at 495-496."
I would, with respect, adopt what both Wilcox and Gummow JJ have said in these two cases. It matters not that one judge approached the matter by treating it as a case where a relevant consideration had been omitted from count and the other by treating the case as one where a policy had been applied without regard to the merits of the case. The essential principle upon which counsel for Mr Hindi relied was that the Minister, the Panel and the delegates were required to give proper consideration to the merits of the cases before them. So the question for decision is whether that consideration has been given to the applicant's case here. The answer to the question necessitates an analysis of the various decisions and memoranda to which reference has been made.
I have reflected about the matter for some time conscious of the matters stated earlier in these reasons concerning the difficulty under which immigration officers operate, but I am driven to the conclusion that the way in which the submission based on Mr Hindi's difficulty in returning to Liberia is put reflects a situation in which the matter was not given any genuine or proper consideration either by the recommending officer or by the delegate who accepted the recommendation. (emphasis added)

The Khan or the Hindi principle has been applied many times. Examples include: Immigration, Local Government & Ethnic Affairs, Minister for v Pashmforoosh (1989) 18 ALD 77; Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468; Bruce v Cole (1998) 45 NSWLR 163 at 186; Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 442; Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180; ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197; and Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516.
In the present unusual situation the advice to the Minister did not inform him adequately or at all as to the alternative steps open to him to comply with Art 2(a) of the Treaty by refusing surrender but complying with any request from Hungary to submit Mr Zentai for prosecution in Australia. The advice to the Minister did not give genuine, realistic and proper consideration to the Art 2(a) option when considering the Art 2(f) argument as to humanitarian considerations. The more humane solution, still within the bounds of the Treaty was dismissed on the basis of ‘longstanding’ policy’.
This is not a merits review. Nevertheless, in Mr Zentai’s very unusual circumstances, the conclusion must be reached that the Khan or Hindi principle has not been observed. On the whole of the evidence (and as argued in ground 9) the Minister could not have given proper, genuine and realistic consideration to the merits of the virtually unmentioned far more humanitarian option open to him under Art 2(a)of the Treaty.
Mr Zentai succeeds therefore on grounds 3, 4 and 9 and is entitled to relief. The parties have requested I defer making specific orders so that the parties may consider further submissions in support of orders which should reflect these reasons and conclusions. That course is entirely appropriate.
The following orders will be made:
1.The applicant, within 28 days, do file and serve submissions supporting a minute of orders which the applicant contends should be made.
2.The respondents who wish to do so, do file and serve within 28 days submissions in reply and a minute of orders proposed.
3.The applicant, within 14 days thereof, do file any submissions in reply and any amended orders.
4.There be liberty to apply.
5.Costs be reserved.

I certify that the preceding four hundred and one (401) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.
Associate:
Dated: 2 July 2010

Citation:	Zentai v Honourable Brendan O’Connor (No 3) [2010] FCA 691
Parties:	CHARLES ZENTAI v THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS, COMMONWEALTH ATTORNEY-GENERAL, BARBARA LANE, THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON and THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON
File number:	WAD 220 of 2009
Judge:	MCKERRACHER J
Date of judgment:	2 July 2010
Catchwords:	ADMINISTRATIVE LAW - judicial review – s 39B(1) and s 39B(1A) of the Judiciary Act 1903 (Cth) - review of decisions made pursuant to ss 16, 19 and 22 of the Extradition Act 1988 (Cth) - failure to consider a relevant matter - jurisdictional error - Wednesbury unreasonableness EXTRADITION - whether the applicant was ‘accused’ for the purposes of the Extradition Act and therefore an ‘extraditable person’ - where extradition sought for investigation and criminal proceedings not commenced by the requesting country - material before the Minister when he decided to issue a Notice under s 16 of the Extradition Act - where decisions pursuant to s 19 and s 22 of the Act are parasitic on the decision made pursuant to s 16 - where new material became available to the Minister- whether extradition was sought for an ‘extraditable offence’ - double criminality - where offence was not an offence in the requesting country at the time of the conduct constituting the offence - humanitarian considerations - where requesting country may not be capable of providing a fair trial - where applicant is 89 years old and in poor health - where alternatives were available to the Minister pursuant to the legislative scheme if extradition were refused
Legislation:	Extradition Act 1988 (Cth) ss 3(a), 6, 11, 16, 16(1), 16(2), 19, 19(9), 19(10), 21, 22, 22(2), 22(3) Federal Court of Australia Act 1976 (Cth) s 23 Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A) Treaty on Extradition Treaty Between Australia and the Republic of Hungary 1995 Arts 1, 2, 3, 7 Constitution s 75(v)
Cases cited:	A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221 ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197 (Associated Provincial Picture Houses v Wednesbury Corporation 1948] 1 KB 223 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Baker v The Queen (2004) 223 CLR 513 Bruce v Cole (1998) 45 NSWLR 163 Cabal v Vanstone (2000) 101 FCR 112 Cabal v United Mexican States (No 3) (2000) 186 ALR 188 Chang v Laidley Shire Council (2007) 234 CLR 1 Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat & Live-Stock Corporation (1990) 96 ALR 153 Federal Commissioner of Taxation v Brian Hatch Timber Co. (Sales) Pty. Ltd.(1972) 128 CLR 28 Foster v Minister for Customs & Justice (1999) 164 ALR 357 Foster v Minister for Customs and Justice (2000) 200 CLR 442 Habib v Commonwealth of Australia (2010) 113 ALD 469 Hamden v Rumsfeld 548 US 557 (2006) Harris v Attorney-General (Cth) (1994) 52 FCR 386 Hempel v Attorney-General (Cth) (1987) 77 ALR 641 Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 Immigration, Local Government & Ethnic Affairs, Minister for v Pashmforoosh (1989) 18 ALD 77 Jason McGoldrick and Michael Turner v Central Court, Pest (McGoldrick-Turner) [2009] EWHC 2816 Kajewski v Commissioner of Taxation (2003) 52 ATR 455 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Kolotex Hosiery (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1975) 132 CLR 535 Lichtenstein v Guatemala (1955) 22 ILR 349 M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 532 McHugh Holdings Pty Ltd v Director General (NSW) [2009] NSWSC 1359 Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Mokbel v Attorney-General for the Commonwealth of Australia (2007) 162 FCR 278 Murrumbidgee Groundwater Preservation Assn Inc v Minister for Natural Resources [2005] NSWCA 10 O'Donoghue v Ireland (2009) 263 ALR 392 O'Donoghue v Ireland, Zentai v Republic of Hungary, Williams v United States of America (2008) 234 CLR 599 Oates v Attorney-General (2001) 181 ALR 559 Pasini v United Mexican States (2002) 209 CLR 246 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Public Prosecutions (Cth), Director of v Kainhofer (1995) 185 CLR 528 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 R v Davis [2008] 1 AC 1128 Re Arton (No 2) [1896] 1 QB 509 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 Republic of Croatia v Snedden (2010) 265 ALR 621 Saville v Health Care Complaints Commission [2006] NSWCA 298 Secretary of State for the Department v AF [2009] UKHL 28 Snedden v Republic of Croatia (2009) 178 FCR 546 Sykes v Cleary [No 2] (1992) 176 CLR 77 Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 Tervonen v Minister for Justice and Customs (No 2) (2007) 98 ALD 589 Timar v Minister for Justice and Customs (2001) 113 FCR 32 Trenk v District Court of Pizen-Mesto, Czech Republic [2009] EWHC 1132 Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 Vasiljkovic v Commonwealth (2006) 227 CLR 614 Victrawl Pty Ltd v Telstra Corp Ltd (1995) 183 CLR 595 Vyner v Keeper of Her Majesty's Penitentiary at Malabar (1975) 6 ALR 105 Western Australia v Watson [1990] WAR 248 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 Windisch v Austria (1990) 13 EHRR 281 Zentai v Honourable Brendan O’Connor (No 2) [2010] FCA 252 Zentai v Honourable Brendan O’Connor [2009] FCA 1597 Zentai v Republic of Hungary (2006) 153 FCR 104 Zentai v Republic of Hungary (2007) 157 FCR 585 Zentai v Republic of Hungary (2009) 180 FCR 225 Zentai v Republic of Hungary (No 2) [2006] FCA 1735 Zentai v Republic of Hungary [2007] FCA 842 Zentai v Republic of Hungary [2007] HCATrans 491 Zentai v Republic of Hungary [2008] FCA 1335 Zentai v Republic of Hungary [2009] FCA 284 Zentai v Republic of Hungary [2009] FCA 511
Date of hearing:	27-28 April 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	401
Counsel for the Applicant:	MJ McCusker QC with PW Johnston and VM Priskich
Solicitor for the Applicant:	Fiocco’s Lawyers
Counsel for the First, Second and Fifth Respondents:	JD Allanson SC with P Hannan
Solicitor for the First, Second and Fifth Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 220 of 2009

JUDGE:	MCKERRACHER J
DATE OF ORDER:	2 JULY 2010
WHERE MADE:	PERTH

JUDGE:	MCKERRACHER J
DATE:	2 JULY 2010
PLACE:	PERTH

INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[1]
BACKGROUND........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[3]
THE CHALLENGE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[66]
THE LEGISLATIVE FRAMEWORK........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[77]
SOME THRESHOLD CONSIDERATIONS........ ........ ........ ........ ........ ........ ........ .......	[86]
The role of advice to the Minister........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[86]
The timing of the s 16 challenge........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[93]
A difficult challenge........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[99]
GROUNDS OF REVIEW AS AMENDED........ ........ ........ ........ ........ ........ ........ ........ ..	[101]
EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[102]
GROUNDS CONSIDERED INDIVIDUALLY........ ........ ........ ........ ........ ........ ........ ...	[112]
Ground 1 – the applicant is not ‘accused’ of an offence under Hungarian law and hence is not an ‘extraditable person’ within the meaning of the Act........ ........ .......	[112]
Ground 2 – that the magistrate’s determination on 20 August 2008 that Mr Zentai was an eligible person under s 19 and her committing Mr Zentai to imprisonment were beyond jurisdiction, unlawful and void........ ........ ........ ........ .......	[161]
Ground 3 – the Minister’s order to surrender Mr Zentai for extradition under s 22 was beyond jurisdiction and void........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[167]
Ground 4 – war crime was not a ‘qualifying extradition offence’ for which Mr Zentai is liable to be surrendered for extradition – retrospectivity not permitted..	[184]
Ground 5 – nationality of applicant as a basis for discretionary refusal........ ........ ..	[215]
*The nationality of Mr Zentai........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .*	[218]
Ground 5A – article 3(2)(b) of the Treaty – the Australian Federal Police and the Commonwealth Director of Public Prosecutions did decide to refrain from prosecuting Mr Zentai for the alleged offence........ ........ ........ ........ ........ ........ ........ ..	[234]
Ground 6 - article 3 para 2(f) of the Treaty – Mr Zentai’s extradition would be unjust, oppressive and incompatible with humanitarian considerations because of the Minister’s failure to be satisfied that Hungary is capable of providing a fair trial........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[260]
Ground 7 – section 7(c) of the Act – Mr Zentai may be prejudiced at his trial by reason of his nationality or political opinions........ ........ ........ ........ ........ ........ ........ ....	[293]
Ground 8 – article 3 para 1(f) – offence cannot be tried by the Military Panel.......	[309]
Ground 9 – article 3 para 2(f) – failure to consider properly whether it would be oppressive and incompatible with humanitarian considerations to surrender Mr Zentai for extradition given his advanced age, ill-health and other factors including the severity of the sentence in the circumstances........ ........ ........ ........ .....	[322]
Ground 10 – misapprehension that Hungary was unaware of Mr Zentai’s presence in Australia due to his name change from Steiner to Zentai........ ........ .....	[348]
Ground 11 – the Minister’s flawed, illogical and irrational conclusion is so manifestly unreasonable that it cannot stand as a proper and genuine discharge of his responsibilities under the Act........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[364]
Ground 12: failure to give reasons........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[377]
CONCLUSION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[387]