Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191

FEDERAL COURT OF AUSTRALIA

Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 EXTRADITION – appeal against dismissal of application for writ of prohibition and injunctive relief to restrain the execution of a surrender warrant – s 23 of Extradition Act requires the issue of a surrender warrant following a valid surrender determination without any further decision – neither communication with the United Nations (based upon United Nations Convention against Torture and other Cruel and Inhumane or Degrading Treatment or Punishment (Convention against Torture) nor involvement in litigation within Australia by person subject to surrender determination was a basis for judicial intervention in relation to the operation of s 23 CONSTITUTIONAL LAW – whether involvement in Australian court proceedings a bar to extradition PRACTICE AND PROCEDURE – whether proceeding an abuse of process INTERNATIONAL LAW – effect of Convention against Torture and International Covenant on Civil and Political Rights in extradition proceeding Constitution, Ch III, s 75(v) Crimes Torture Act 1988 (Cth) Extradition Act 1988 (Cth), s 22, s 23 Judiciary Act 1903 (Cth), s 39B International Covenant on Civil and Political Rights, Article 14 Convention against Torture and other Cruel and Inhumane or Degrading Treatment or Punishment, Art 3(1), Art 22 Rivera v Minister for Justice and Customs [2007] FCA 1693 affirmed Rivera v Minister for Justice and Customs (2007) 160 FCR 115 cited Rivera v Minister for Justice and Customs [2006] FCA 1784 cited Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 cited Harris v Attorney-General (Cth) (1994) 52 FCR 386referred to Hunter v Chief Constable of the West Midlands Police [1982] AC 529 cited SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609cited Vasiljkovic v Commonwealth (2006) 227 CLR 614cited Walton v Gardiner (1993) 177 CLR 378 applied LAWRENCE RIVERA v MINISTER ADMINISTERING THE EXTRADITION ACT 1988 (CTH)

NSD 2264 of 2007

GYLES, RARES, FLICK JJ

4 DECEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2264 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: LAWRENCE RIVERA

Appellant

AND: MINISTER ADMINISTERING THE EXTRADITION ACT 1988 (CTH)

Respondent

JUDGES: GYLES, RARES, FLICK JJ

DATE OF ORDER: 4 DECEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the respondent be amended to the Minister Administering the Extradition Act 1988 (Cth). 2. The appeal be dismissed. 3. The appellant pay the costs of the respondent. 4. The execution of the warrant for surrender of the appellant be stayed up to and including 11 December next.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2264 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: LAWRENCE RIVERA

Appellant

AND: MINISTER ADMINISTERING THE EXTRADITION ACT 1988 (CTH)

Respondent

JUDGES: GYLES, RARES, FLICK JJ

DATE: 4 DECEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT GYLES J 1 On 31 August 2006 the Minister for Justice and Customs (as delegate of the Attorney-General) (the Minister) made a surrender determination relating to the appellant, Lawrence Rivera, pursuant to s 22 of the Extradition Act 1988 (Cth) (the Act). The appellant challenged that surrender determination by application to this Court. That challenge was unsuccessful at first instance (Rivera v Minister for Justice and Customs [2006] FCA 1784 and on appeal to the Full Court (Rivera v Minister for Justice and Customs (2007) 160 FCR 115. An application for special leave to appeal to the High Court from that decision was dismissed on 24 October 2007. There is a considerable earlier history of litigation which I do not set out here. 2 On 13 September 2007 the appellant sought a writ of prohibition and injunctive relief pursuant to s 39B of the Judiciary Act 1903 (Cth) to restrain the Minister from taking or causing to be taken any action under the surrender warrant pursuant to s 23 of the Act. That application was dismissed by a judge of this Court on 14 November 2007 (Rivera v Minister for Justice and Customs [2007] FCA 1693). This is an appeal from that decision. 3 The hearing of the appeal has been expedited. Before the hearing the Court had the benefit of considering an outline of argument prepared by the appellant and given to Lindgren J in an earlier interlocutory application and the submissions filed on behalf of the respondent Minister. 4 The grounds of the original application appeared in an affidavit made by the appellant. This took the form of discursive argument rather than a clear statement of grounds. One set of arguments commenced with an allegation that, on 5 April 2007, the appellant had filed a communication with the United Nations to have his extradition case reviewed by the High Commissioner for Human Rights, who then assigned it to the Committee against Torture. An argument is then advanced based upon Australia ratifying and being party to the United Nations Convention against Torture and other Cruel and Inhumane or Degrading Treatment or Punishment (the Convention against Torture). 5 The affidavit also referred to other proceedings which the appellant had commenced in the Supreme Court of New South Wales and in this Court which were unresolved at the commencement of the proceeding. It was contended that both Ch III of the Australian Constitution and Article 14 of the International Covenant on Civil and Political Rights protect the right of access to the courts and that the removal of the appellant from the country would be inconsistent with that obligation. 6 The grounds were apparently clarified at the hearing and the primary judge summarised them in Rivera [2007] FCA 1693 at [8]. Those grounds do not refer to the second basis which I have identified from the affidavit, that is, the basis depending upon the existence of other proceedings and there does not appear to be any express reference to that argument in the balance of the judgment. 7 The primary judge was of the opinion that, when a valid surrender determination is made under s 22(2) of the Act, mandatory statutory provisions then operate for the implementation of the extradition process. Pursuant to s 23 of the Act, a warrant must issue for the surrender of the person. He was of opinion that, following a valid surrender determination, there was no further decision to be made by the Minister in relation to which a writ of prohibition could apply. There was no scope for the application of the doctrine of legitimate expectation in that statutory process. There was no separate basis for the grant of injunctive relief (Rivera [2007] FCA 1693 at [21]–[24] and [34]). 8 The primary Judge, however, went on to deal with the arguments relating to the Convention against Torture, assuming them to be open, and rejected them. As I have said, the primary Judge did not, in terms, deal with the argument based upon the existence of proceedings in Australia that were unresolved. 9 The principal question for determination is whether his Honour was correct in his construction of the Act. In my opinion, his Honour was, in the circumstances of this case at least, correct in his construction and application of s 23. It does not purport to give any discretion to the Attorney-General. Where it says that the Attorney-General shall issue a warrant for the surrender of the person to the extradition country under the section, it means what it says. "Shall" means "shall". It is not necessary for the purposes of this case to explore the position in which an Attorney-General may find himself or herself if there is a significant change of circumstance. That issue can be left for another day. In my opinion, it is quite clear that neither basis advanced by the present appellant gives rise to any claim by him entitling him to prohibition or an injunction. The Minister was under no obligation to consider the matters raised by him in a manner which would be enforceable by any right of action against the Minister. The Parliament has laid down that once the gateways in s 22(2) have been closed, extradition must follow. 10 In any event, I was not persuaded that the reference to the United Nations is of any significance, having in mind the terms of s 22, particularly s 22(3)(b), of the Act. The legislature has considered the topic of torture. Indeed, it is clear from the definition of "political offence" that the legislature had in contemplation the Convention to which appeal is now made, although it appears that at that time the Convention against Torture had not been ratified. I am also not persuaded that the existence of collateral proceedings in Australia would amount to any proper basis for qualifying the obligation under s 23. It may be that a person who is extradited would find great difficulty in pursuing litigation in Australia for practical reasons. However, extradition does not in itself lead to impossibility of presentation of such a case. In any event, the filing of a proceeding by a person can hardly be seen as a basis for intervening in relation to the operation of s 23. 11 It must be borne in mind that the appellant must establish a cause of action entitling him to this relief. We are not considering what an Attorney-General may do confronted with other particular situations. I would dismiss the appeal with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate: Dated: 5 December 2007

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2264 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF the FEDERAL COURT OF AUSTRALIA BETWEEN: LAWRENCE RIVERA

Appellant

AND: MINISTER ADMINISTERING THE EXTRADITION ACT 1988 (CTH)

Respondent

JUDGES: GYLES, RARES AND FLICK JJ

DATE: 4 DECEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT RARES J 12 I agree with Gyles J but wish to add some further observations. The Act contemplates that there are four stages to the extradition process. This has been recognised in a number of authorities: Vasiljkovic v Commonwealth (2006) 227 CLR 614 at 628 [29] per Gleeson CJ, 636 [57] per Gummow and Hayne JJ who referred to the decision of a Full Court of this Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389. The last stage of the process is an executive determination that the person is to be surrendered pursuant to s 22, followed by the issue of a warrant under s 23. Mr Rivera has now reached that stage. In the ordinary course, as Gyles J has said, one might expect that to be the final part of the process of extradition. 13 Mr Rivera said that he was not attempting to impeach the correctness of the decision to issue the surrender warrant under s 23. He had previously litigated the question whether that decision was valid, as Gyles J has said. On each previous occasion he was unable to secure relief in respect of it. The decision of the Full Court of this Court in Rivera v Minister for Justice and Customs (2007) 160 FCR 115 showed that a feature prominent in the reasons put forward by Mr Rivera for challenging the issue of the s 23 warrant was the alleged failure of the Minister to take into account allegations Mr Rivera had made concerning his torture or mistreatment when in the United States of America: see eg Rivera 160 FCR at 129-130 [74]-[78] per Emmett J, with whom Conti J agreed. 14 The matters which Mr Rivera now wishes to raise appear to me to be matters which were the very ground work of the previous decisions or were ones that could have been raised beforehand. Among other things, he now relies on his proceedings brought in the Supreme Court of New South Wales. Those relate to events he alleged occurred between December 2002 and December 2003, yet those proceedings were only commenced by him in that Court by the filing of his statement of claim on 7 March 2007. There, he sought relief against the Commonwealth, the State of New South Wales and a third person. 15 Where a claim is made for constitutional writ relief, such as the writs of prohibition and injunction under s 75(v) of the Constitution, as available in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth), the Court has a discretion to grant or withhold the relief. This was emphasised recently by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [28]-[29]. One reason the Court can refuse to order the issue of a writ, even though some ground for it might otherwise have been established, is where there has been an unwarrantable delay or bad faith on the part of the applicant. In my opinion, another reason might be whether the proceedings could properly be seen as amounting to an abuse of the process of the Court. 16 I am of opinion that the lack of merit in the substance of Mr Rivera's appeal, the subject of Gyles J's reasons, with which I agree, demonstrates that these proceedings are in the category of an abuse of the process of the Court. They appear to be a repetitious challenge to the decision that has already been made by the courts that the s 23 warrant is valid. With the exceptions of the letter to the Committee Against Torture and his litigation in the Supreme Court of New South Wales, Mr Rivera now relies upon matters that had already existed and been the subject of his litigation beforehand. 17 These proceedings can be seen as being in the category described in Walton v Gardiner (1993) 177 CLR 378 at 393 by Mason CJ, Deane and Dawson JJ (who adopted the description of Lord Diplock in Hunter v Chief Constable of the West Midlands Police ([1982] AC 529 at 536), namely, they are proceedings that attract: "… the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people." 18 The categories of abuse of process are not closed: Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at 263-265 [5]-[9] per Gleeson CJ, Gummow, Hayne and Crennan JJ. In my opinion, the continuation of this litigation would be an abuse of the process of the Court because Mr Rivera's substantive case has already been fully considered in his several challenges to the various stages of the extradition procedures brought against him. 19 Mr Rivera's complaint to the Committee Against Torture was, as his letter to that Committee dated 16 April 2007 said, brought in circumstances where: "… for all practicable purposes, all [his Australian] remedies have been exhausted. A final decision has been made by the Australian government." 20 In the same letter he referred the Committee to Art 3(1) of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on 10 December 1984, which seeks to prohibit extradition of a person where there are substantial grounds for believing that he or she who would be exposed to the danger of being subjected to torture in the country seeking his or her extradition. That was, in substance, the claim that Mr Rivera had made and, at the time the letter was sent, was pursuing unsuccessfully, before the Full Court of this Court and the High Court in seeking special leave to appeal in the decisions to which I have referred. 21 In my opinion, in the circumstances there is no occasion here to permit Mr Rivera to challenge again the enforceability of the s 23 warrant under s 39B of the Judiciary Act. This is because the proceedings are, in effect, foredoomed to fail or would otherwise bring the administration of justice into disrepute among right-thinking people since they attempt to litigate and re-litigate matters which are without substance. 22 For these additional reasons, I agree with the orders proposed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate: Dated: 5 December 2007

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2264 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: LAWRENCE RIVERA

Appellant

AND: MINISTER ADMINISTERING THE EXTRADITION ACT 1988 (CTH)

Respondent

JUDGES: GYLES, RARES, FLICK JJ

DATE: 4 DECEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT FLICK J 23 I agree with the reasons and orders proposed by the presiding judge. I also agree with the reasons of Justice Rares. 24 I would however wish to add a short note about grounds 1 and 2 of the Notice of Appeal. On 5 April 2007, a complaint was made to the United Nations on behalf of the present Appellant. On 30 April 2007, the Appellant was advised that his complaint had been registered with the Committee Against Torture. 25 Ground 1 of the Notice of Appeal claims that the Appellant had a legitimate expectation that the Respondent Minister would act in conformity with the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Ground 2 of the Notice of Appeal claims that the execution of the warrant would be inconsistent with a legitimate expectation arising under the Convention. 26 In my opinion, the execution of the warrant would not be any act or conduct not in conformity with the Convention and would not be inconsistent with any provision of the Convention. No breach of the Convention in my view has been established. No provision of that Convention purports to impose any constraint upon the Executive to act otherwise than in accordance with the domestic law of a signatory State. 27 To the extent that the terms of the Convention are of any relevance when determining the rights and entitlements of the Appellant and the obligations imposed upon the Minister, those terms deny any expectation such as now sought to be raised by grounds 1 and 2 of the Notice of Appeal. Article 22(1) of the Convention provides for the receipt of:

"…communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention." The Convention further provides in Art 22(7) as follows:

"The Committee shall forward its views to the State Party concerned and to the individual." The Convention accordingly provides for the receipt of claims by victims, and thereafter simply provides for the committee to "forward its views" in respect of claims made. No provision of the Convention expressly or impliedly erects any impediment in the path of the Minister in giving effect to the warrant issued in respect of the Appellant. 28 There is no ability to discern from the language of such provisions any expectation that a warrant for extradition will not be executed whilst claims are being considered. Reliance by the Appellant upon Art 3 of the Convention as an aide to the construction of the Art 22 is misplaced. 29 Moreover, it is doubted whether the Convention could in any event, and of its own force, be the source of any expectation such as that relied upon by the Appellant. No representation or conduct has been established committing the Minister to the position that he would not execute the warrant in advance of any further consideration by the United Nations of the Appellant's complaint. Had such a representation been made, or any like conduct established, an argument could potentially have been advanced that there would be a breach of an expectation, attracting judicial intervention. 30 With respect to the present Convention, the Commonwealth legislature has expressly addressed the extent to which it is to be implemented as part of Australian law: see the Crimes Torture Act 1988 (Cth). No provision of that Act presently assists the Appellant. 31 For these reasons, I too would dismiss the appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 5 December 2007

The Appellant appeared in person

Counsel for the Respondent: Mr N Beaumont

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 4 December 2007

Date of Judgment: 4 December 2007