FEDERAL COURT OF AUSTRALIA

Hala v Minister for Justice [2015] FCAFC 13

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

the court

1    Section 22(2) of the of the Extradition Act 1988 (Cth) imposes an obligation on the Attorney-General to determine whether an “eligible person” (as defined in s 22(1)) is to be surrendered to a country requesting his or her extradition in relation to a qualifying extradition offence or offences “as soon as reasonably practicable, having regard to the circumstances”. The criteria for the making of a surrender determination are set out in s 22(3) of the Act.

2    Richard Hala was such a person and the Minister for Justice made such a determination. That the Minister, in addition to the Attorney-General, has the power to do so was not in dispute: see s 19A of the Acts Interpretation Act 1901 (Cth); Mokbel v Attorney-General for the Commonwealth for Australia (2007) 162 FCR 278.

3    This appeal raises two substantive questions. The first is one upon which judges of this Court have disagreed. It is whether the failure to make a surrender determination “as soon as reasonably practicable, having regard to the circumstances”, as s 22(2) requires, is a jurisdictional error. The second is whether, in failing to give Mr Hala the opportunity to respond to submissions provided by the Czech Republic, the Minister denied Mr Hala procedural fairness. The answer to both questions is “no”. It follows that the appeal must be dismissed.

Background facts

4    The facts were uncontroversial. The following summary is largely derived from the primary judge’s reasons.

5    Mr Hala was born in the Czech Republic. He came to Australia in 1986 and took out Australian citizenship two years later.

6    On 28 June 2010 Mr Hala was convicted of fraud by a Czech court. He was convicted in his absence. The fraud was allegedly committed in the Czech Republic during 1995. The amount involved was approximately AUD 287,000. Mr Hala was sentenced (again in his absence) to five years imprisonment.

7    On 10 January 2011 the Czech Republic made a request to Australia for Mr Hala’s extradition. We interpolate that it was undisputed that, if he were surrendered, he would have an unassailable right to a retrial and to legal representation at the retrial.

8    On 20 September 2012 a magistrate determined that Mr Hala was eligible for surrender and made an order under s 19(9) of the Extradition Act committing him to prison to await surrender in relation to one count of fraud, contrary to s 209(1, 5a) of the Czech Penal Code. It is because of this order that Mr Hala became an “eligible person” for the purposes of s 22(2).

9    The next day, in a letter addressed to Mr Hala’s then lawyer, Alasdair Putt, the Attorney-General’s Department (“Department”) invited Mr Hala to provide to the Minister within 14 days any reasons why he should not be surrendered to the Czech Republic. He was told that information he provided may be disclosed to law enforcement or other government authorities in Australia or “foreign countries” in order to determine the weight to be attached to it. On 28 September 2012 Mr Putt accepted the invitation on his client’s behalf. He submitted that Mr Hala should not be surrendered (amongst other reasons) because:

(a)    Mr Hala had resided in Australia since 1986 and had been an Australian citizen since 1988;

(b)    The alleged offending occurred in 1995 and it would be almost impossible for him to have a fair trial after so long, “particularly since the Czech Republic have been aware of his whereabouts in Western Australia since at least 1997”;

(c)    The Czech Republic had provided no information to Mr Hala to explain the undue delay and he was not responsible for it;

(d)    Mr Hala had not left the Czech Republic as a fugitive;

(e)    The case against him was not being prosecuted in good faith;

(f)    There were lengthy delays in the Czech Republic’s legal system which meant that he would be held in custody for at least a year before a retrial;

(g)    He had various health issues;

(h)    Prisons in the Czech Republic were overcrowded and there were poor medical facilities;

(i)    While the offence was not trivial, it was of such a nature as not to compel surrender.

10    On 2 October 2012 the Department acknowledged receipt of the letter by email. The email also advised that the Czech authorities would be provided with an opportunity to comment on the Mr Hala’s submissions and that the Minister would consider those submissions as well as any comments from the Czech authorities in making his determination.

11    By a letter dated 16 October 2012, an officer of the Department invited the Czech Republic to respond to Mr Hala’s submissions, summarising the relevant aspects. Two paragraphs are particularly pertinent:

5.    Mr Hála submits there has been undue delay in the commencement of the proceedings, which is unexplained. Mr Hála states that the offence took place between 28 May 1995 to 18 October 1995, however an indictment was not filed until June 2009, and that his location in Western Australia has been known to Czech authorities since at least 1997.

6.    We would be grateful for your advice about the steps undertaken by Polish (sic) authorities between 1995 and 2009 in relation to the investigation and prosecution of this case and the reason for the delay in filing the indictment.

12    The Department received the Czech Republic’s response on 16 November 2012. The response consisted of a covering letter and a number of documents which purportedly contained answers to the questions raised by the Department’s letter. The documents comprised a letter from the Office of the Municipal Public Prosecutor in Prague dated 31 October 2012 addressed to the Municipal Court in Prague, a statement from the court itself and a letter from the Director of the Prison Service of the Czech Republic dated 8 November 2012. Mr Hala was not given an opportunity to comment on any of this material.

13    About eight months later, on 8 July 2013, the Minister made the surrender determination. All but three days of the intervening period were said to have been taken up with the Department working on the brief for the Minister (“the Ministerial brief”). In other words, it took the Minister just three days after receiving the Ministerial brief to make his decision.

14    The very questions raised in the present case were raised by Daniel Snedden (also known as Dragan Vasiljkovic) in Snedden (aka Vasiljkovic) v Minister for Justice (Cth) (2013) 141 ALD 351; [2013] FCA 1202. Davies J held against Mr Snedden on the first question and in his favour on the second. Mr Snedden filed a notice of appeal and the Minister a cross-appeal. At the time of the hearing of the present appeal, the appeal and cross-appeal in Mr Snedden’s case had been heard but not decided. At the conclusion of the hearing of the present appeal we gave the parties the opportunity to make submissions on the impact of the Full Court’s judgment in Mr Snedden’s case. Judgment in that case was published on 12 December 2014: Snedden v Minister for Justice for the Commonwealth of Australia (2014) 315 ALR 352; [2014] FCAFC 156 (“Snedden”). The Full Court unanimously upheld Davies J’s decision on the first question and by a majority (Pagone J dissenting) held that her Honour erred on the second. Soon afterwards, both parties took the opportunity to make further submissions, Mr Hala on 17 December 2014 and the Minister on 19 December 2014.

The statutory scheme

15    The statutory scheme was explained in some detail in Snedden (at [6]–[23]). As Middleton and Wigney JJ put it at [6], the Extradition Act “establishes a detailed and tightly structured scheme or process pursuant to which a person may be surrendered to another country”. There are several stages, each of which “involves a decision of a binary nature based on stated criteria”. If those criteria are made out, then the process continues. If they are not, then the process comes to an end. It is unnecessary in the circumstances to describe the process in great detail but it is important to say something about it in order to put the Minister’s conduct in context.

16    Strictly speaking, the process begins with the extradition country making an application for the issue of a warrant for the arrest of a person. The Full Court in Snedden, however, proceeded on the basis that the first stage involves the issuing of the warrant, consequent upon the making of the application. Nothing turns on the characterisation, so it is convenient to do the same here.

17    At the relevant time, s 12 of the Extradition Act provided that where an application (in the statutory form) for the issue of an arrest warrant is made to a magistrate on behalf of an extradition country and the magistrate is satisfied on the basis of information given by affidavit that the person is “an extraditable person in relation to the extradition country”, the magistrate shall issue a warrant for the person’s arrest. The magistrate was then required to forthwith send a report to the Attorney-General stating that he or she had issued the warrant, together with a copy of the affidavit. “Extraditable person” was defined in s 6 to include a person who has been convicted of an offence or offences against the law of a country and the whole or part of a sentence imposed on the person as a consequence of the conviction remains to be served, where the offence or any of the offences is an extradition offence in relation to the country and the person is believed to be out of the country. “Extradition country” was defined in s 5 to include a country (other than New Zealand) declared by the regulations to be an extradition country. The Czech Republic is declared by the Extradition (Czech Republic) Regulations 2007 (Cth) to be an extradition country.

18    As soon as practicable after the person was arrested under the extradition warrant they must be brought before a magistrate in the State or Territory where the arrest took place to be remanded in custody or on bail (s 15).

19    The Extradition Act was amended after this stage was completed in Mr Hala’s case. But the amendments are irrelevant for present purposes. They were inserted by the Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth) in connection with the Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth). The effect of the amendments was to give Federal Circuit Court judges the same powers as magistrates under the Extradition Act. The scheme remains the same.

20    The second stage involves the Attorney-General issuing a notice in writing to the magistrate that he or she has received an extradition request from the extradition country. Sections 16 and 16A (which relates to the issuing of amended notices) deal with this. The Attorney-General may issue the notice at his or her discretion but is forbidden from doing so unless he or she is of the opinion that the person is an extraditable person in relation to the extradition country (s 16(2)). Where the Attorney-General chooses not to do so or decides to cancel the warrant, he or she must give written notice in the statutory form directing a magistrate to cancel the warrant (s 12(3)).

21    As soon as practicable after the person is remanded under s 15 or the notice is given (whichever is later), a copy of the notice and copies of certain documents must be given to the person. Those documents include the supporting documents in relation to the offence which were produced to the magistrate.

22    The third stage involves the magistrate conducting proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or offences for which surrender is being sought (s 19). Section 19(2) provides that, for that purpose, a person is only eligible for surrender in certain defined circumstances. They include:

(c)    the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d)    the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

23    “Extradition offence” is defined in s 5 to include an offence against a law of a foreign country for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months.

24    “Extradition objection” is defined in s 7:

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

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

(b)    the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions or for a political offence in relation to the extradition country; or

(c)    on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions; or

(d)    assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or

(e)    the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.

25    One of the other conditions of eligibility is that the supporting documents in relation to the offence have been produced to the magistrate. They are defined in s 19(3). Where the offence is one of which the person has been convicted, they include duly authenticated documents evidencing the conviction, the sentence (or the intention to impose a sentence) and the extent to which the sentence imposed has not been carried out, as well as duly authenticated statements in writing setting out a description of, and the penalty applicable in respect of, the offence and the conduct constituting the offence.

26    The fourth stage involves the surrender determination by the Attorney-General made under s 22. We have already referred to subsections (1) and (2). It is necessary to refer as well to subsection (3). As we mentioned earlier, s 22(3) contains the conditions upon which the eligible person may be surrendered. It states:

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; and

(b)    the Attorney-General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture; and

…

(d)    the extradition country concerned has given a speciality assurance in relation to the person; and

(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.

27    It was not in dispute that the conditions in paras (a) to (e) had been fulfilled in this case. The issues touch upon the exercise of the general discretion conferred by para (f).

The decision of the primary judge

28    In the proceeding before the primary judge Mr Hala sought judicial review of the Minister’s decision on five grounds. As only two of them are the subject of this appeal, it is unnecessary to recount them all. On the two in question, the primary judge’s findings were set out at [8]–[18] and [45]–[61] respectively.

29    On the first question, Mr Hala contended that a delay of nearly eight months between the receipt of the response of the Czech Republic and the making of the surrender determination amounted to a failure to make the determination under s 22 “as soon as practicable, having regard to the circumstances”. He argued that the Minister’s determination was consequently “void” or beyond power. For this proposition Mr Hala relied on the judgment of North J in Santhirarajah v Attorney-General (Cth) (2012) 206 FCR 494 (“Santhirarajah”), which Davies J declined to follow in Snedden (aka Vasiljkovic) v Minister for Justice (Cth).

30    On this question, the primary judge agreed with Davies J and specifically with the observations she made at [21] of her reasons. At [21] her Honour said that there were “clear textual and contextual” reasons for concluding that it was not the intention of the Parliament to deprive the Attorney-General of the power to make a surrender determination if the determination had not been made within the time provided in the section. Her Honour considered that the time stipulation conditioned only the time for performance of the power, not the existence of the power, and the mandatory requirement as to time could be enforced by an order in the nature of mandamus.

31    On the second question, Mr Hala relied on the decision of Davies J, who found that Mr Snedden had been denied procedural fairness when he was not afforded the opportunity to comment on Croatia’s response to Mr Snedden’s submissions. But the primary judge held that Snedden (aka Vasiljkovic) v Minister for Justice (Cth) should not be taken as authority for the proposition that in all circumstances where an extradition country provides a response to the Minister’s invitation to comment on the submissions of an eligible person, the eligible person must be given the chance to comment on the response. His Honour said that “[t]he content of procedural fairness must be determined by the statutory background and the circumstances arising in a particular case” (at [49]). In the circumstances of this particular case, he held that there was no obligation to give Mr Hala that chance. He gave the following reasons.

32    First, his Honour said that by the nature of his response to the Department’s invitation in its 21 September 2012 letter, Mr Hala had the opportunity to define the ambit of the issues he considered relevant to the Minister’s decision “and to provide such information and submissions as he saw fit, in support of those issues”.

33    Secondly, his Honour noted that the letter advised Mr Hala that the information he provided might be disclosed to government agencies in Australia or foreign countries in order to decide what weight should be given to the information. He said that there was nothing in the letter to encourage any expectation that he would have the chance to comment upon a third party’s response. Indeed, the letter “conveyed the message” that this would be the only chance Mr Hala would have to make representations to, and put information before, the Minister (at [58]).

34    Thirdly, although the extradition country might raise in its response an issue which is “not at all germane to the issues raised by the eligible person” and which might give rise to an obligation to give the eligible person the opportunity to comment, his Honour said (at [60]) that was not “the kind of case” Mr Hala advanced. Rather, Mr Hala:

complained about the denial of an opportunity to deal with matters which fell squarely within the issues identified in his initial submissions, namely, the extraordinary delay between the alleged offences, the commencement of criminal proceedings and the retrial, the Czech Republic’s knowledge of his whereabouts and its culpability for the delay, the unfairness attendant thereupon, and whether the applicant had left the Czech Republic as a fugitive.

(Emphasis added.)

Was the failure to make a surrender determination as soon as practicable a jurisdictional error?

35    Before this Court Mr Hala contended that in this respect the primary judge erred in following Davies J in Snedden (aka Vasiljkovic) v Minister for Justice (Cth) and that the construction North J had given to s 22(2) in Santhirarajah should be preferred. He argued that the Minister had failed to make the surrender determination “as soon as reasonably practicable, having regard to the circumstances”, that consequently the power had not been validly exercised and the determination was therefore infected by jurisdictional error. Somewhat paradoxically, it might be thought, Mr Hala asked that the matter be remitted to the Minister for him to make a determination according to law.

36    In Snedden the Full Court unanimously held that the Minister’s determination was not infected by jurisdictional error. Mr Hala made no submissions to the effect that the Full Court decision should not be followed in this respect. Indeed, on this question he was silent. The proper inference is that he accepted that the Full Court should follow Snedden and we propose to do so. In any event, we are of the opinion that the Full Court in Snedden was plainly correct, for the reasons given by Middleton and Wigney JJ with whom in this instance Pagone J agreed. We note that Mr Snedden has applied to the High Court for special leave to appeal but his application does not challenge this part of the Full Court’s judgment.

37    It is unnecessary to decide whether the eight month delay fell foul of s 22(2) because it follows from Snedden that, if the determination was not made “as soon as reasonably practicable, having regard to the circumstances”, the Minister’s error was not jurisdictional.

Was Mr Hala denied procedural fairness?

38    There was no dispute that Mr Hala was entitled to procedural fairness before a decision to extradite him was made under s 22. Up to a point, there was no dispute either about the applicable principles. Broadly speaking, procedural fairness entitles a person affected by a decision “to know the case sought to be made against him and to be given an opportunity of replying to it” (Kioa v West (1985) 159 CLR 550 at 582 per Mason J). As Mr Hala submitted, procedural fairness ordinarily requires the party affected by the decision to be given the opportunity to:

(a)    ascertain the relevant issues and be informed of the nature and content of the adverse material (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32], approving Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”) at 590–591);

(b)    deal with adverse information that is “credible, relevant and significant” to the decision to be made” (Kioa v West at 629 per Brennan J; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (“VEAL”)); and

(c)    advise of any adverse conclusion the decision-maker has reached “which would not obviously be open on the known material” (Alphaone at 592).

39    Simply put, the Minister’s position was that Mr Hala had already had that opportunity, and that there was nothing in the Extradition Act which required the Minister to give him a second opportunity.

40    Mr Hala accepted that a person likely to be affected by an administrative decision to which the rules of procedural fairness apply can support his or her case by appropriate information but cannot complain if the information is not accepted (Alphaone at 591). He also accepted that “fairness is not an abstract concept … the concern of the law is to avoid practical injustice” (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (“Lam”) at [37] per Gleeson CJ).

41    Yet, the allegation as pleaded in the amended originating application was put at a very high level of generality. The written submissions reflect this to some degree. Indeed, at various points in his submissions (and contrary to his summary of the law), Mr Hala seemed to suggest that in every case, regardless of the circumstances, the Minister should give a person the subject of an extradition request the right to reply to the response to his own submissions provided by the extradition country. For example, he submitted that “in a situation where there are so few opportunities to present one’s case, it is important that those opportunities be maximised”.

42    To the extent that Mr Hala’s argument can fairly be said to extend to the proposition that a right of reply must be given in every case, it should not be accepted. The majority of the Full Court in Snedden (Middleton and Wigney JJ) rejected such an argument (at [201]) in this respect and followed the position taken by the primary judge in the present case at [48]–[49]. The primary judge was entirely correct. As his Honour observed (and Middleton and Wigney JJ reaffirmed in Snedden), the content of procedural fairness – that is to say, what will be necessary to afford the person affected by the decision an opportunity to be heard – will vary from case to case depending on the statutory background and the factual circumstances of the case at hand. His Honour also referred (at [50]) to a remark of Gleeson CJ in Lam at [34] that “the content of the requirements of procedural fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed”.

43    The Extradition Act does not prescribe a particular procedure for the Minister to follow when making a s 22 determination.

44    In Snedden, Middleton and Wigney JJ referred to the statutory background at [179]:

The context in which the content of the procedural fairness must be considered here is the statutory scheme for extradition in the Act and the ongoing communications between Mr Snedden and the Department. It is relevant, and potentially important, that at the s 22 stage most of the issues to be addressed by the Minister as decision-maker are fairly well defined. The matter has previously been through the first three stages of the extradition process. The person whose extradition is sought has already been found by a magistrate to be eligible for surrender and has had rights of review in relation to that decision. Many of the issues to be canvassed by the Minister at the s 22 stage would most likely have been canvassed at the s 19 stage. Significant too is the fact that s 22(3) assists by further defining the likely issues. That subsection sets out with precision the issues that the Attorney-General must consider. As a result, by the s 22 stage the person whose extradition is sought is likely to know the case he or she has to meet and the matters he or she should address in response to that case.

45    When it comes to the point of considering how the Minister should exercise the statutory discretion, however, new matters might arise. Unless those matters are known to the extraditable person or obvious, to the extent that they are adverse to the extraditable person’s interests, as their Honours observed at [180], “depending on the particular circumstances”, it is likely that procedural fairness would require that the decision-maker disclose them to the extraditable person. It is, of course, uncontroversial that both the person and the extradition country must be given an opportunity to make submissions. It is the number and extent of the opportunities which are in question here.

46    Mr Hala submitted that “the adversarial nature of the process increases the content of the obligation to afford procedural fairness”. The same point was made in Snedden. The majority accepted that the process was essentially adversarial but said at [182] that it did not follow that the Minister was required to take the steps that a court would ordinarily be required to take, citing VEAL at [24].

47    We do not consider that in any of these respects the majority was plainly wrong. To the contrary, we agree with the majority’s analysis.

48    Mr Hala’s narrower argument (that the particular circumstances of this case called for a right of reply) should also be dismissed.

49    Mr Hala contended that the opportunity should have been afforded to him in this case because:

(a)    some of the matters raised by the Czech Republic in its response were new, they had not previously been raised by Mr Hala, and he should have been given the chance to answer them;

(b)    the advice of the Department in its Ministerial brief referred at length to the Czech response and, in particular, the letter from the public prosecutor’s office, which detailed the attempts by the Czech Republic to contact Mr Hala and contained information personal to him;

(c)    Mr Hala was not aware of these matters before the Minister made the surrender determination; and

(d)    there was evidence before the primary judge that, had these matters been put to Mr Hala, he would have made a submission about them.

50    In his written submissions in chief Mr Hala did not identify the new matters. In oral argument, however, he indicated that the “new” information consisted of the Czech Republic’s explanation for the delay in prosecuting him. In substance, that explanation was that he had fled the Czech Republic in December 1995 following the commission of the offence (but before the prosecution was instituted) and that he had evaded the authorities’ attempts to bring him to justice. He pointed to the description of him in the letter from the Municipal Court in Prague as a person who had left the country soon after the offence was committed and, who for many years had been avoiding criminal prosecution:

Considering the fact that Mr. Hála has been avoiding during many years the compliance with his obligations for which he has been prosecuted and the fact that he travelled abroad shortly after the perpetration of the crimes, custody proceedings will be carried out in this matter in which he may participate at his discretion...

…

It is unambiguous that the procedures of the investigating, prosecuting and adjudicating bodies did not in any way harm the rights of Mr. Hála as he was accused of fraud causing damage amounting to more than 5 million CZK. On the contrary, these actions of his harmed other persons whom he deprived of significant funds and the damage has not been compensated in any way so far. As such, it can not be understood that there would be any unlawful interference or detriment caused to Mr. Hála in relation to the gravity of the crime as he has been avoiding criminal prosecution for many years as mentioned above and does not communicate (is out of reach) with the persons whom he allegedly damaged.

51    Mr Hala also drew attention to the references to him as an “escapee” in the letter from the Office of the Municipal Public Prosecutor and statements made in the document about unsuccessful attempts to locate him in order to interrogate him or to serve him with papers.

52    The nub of his argument, however, was that he was being wrongly characterised as a fugitive from justice. He said he wanted the opportunity to say to the Minister that the delay in prosecution had nothing to do with him.

53    There are a number of difficulties with Mr Hala’s arguments.

54    First and foremost, as the primary judge observed, the information was not new. The international arrest warrant repeatedly referred to him as a fugitive and stated that he was prosecuted “in the position of a fugitive”. It noted that he had left Australia at the end of 1995 and stayed here “at an unknown place”. It stated that the provision of the Penal Procedure Code under which the proceedings against him had been conducted was s 302. Underneath the reference to the section was the following statement:

Proceedings under this section may be conducted against those who avoid criminal proceedings by staying abroad or by hiding themselves.

55    The warrant also alluded to unsuccessful attempts by or on behalf of the Czech authorities to locate him here. It referred to Interpol reports apparently about such attempts. In the case of one, it recorded that the report stated that an inspection at two addresses used by Mr Hala in Scarborough, Western Australia, did not provide any information about his stay “and it was not discovered whether he rented a dwelling in Perth”.

56    Although the appeal books contained no explicit reference to service of the warrant, there was apparently no issue that Mr Hala had been served with it before he made his representations to the Minister for the purpose of the s 22 determination.

57    Furthermore, the supporting documents which had to be provided to Mr Hala pursuant to s 16(3) of the Act included the authenticated record of his conviction and sentence. The only document to which the Court was taken which answers this description was entitled “Judgment in the name of the Republic”. It was annexed to the affidavit from Mr Hala’s solicitor. It also stated that Mr Hala was “prosecuted as a fugitive”. It described his current residence as “unknown”. And it referred to him as having stayed “in an unknown place” in Australia since he left the Czech Republic in 1995.

58    Thus, as the Minister put it during oral argument, the fact that the Czech Republic considered him a fugitive or escapee could not have been a surprise to him. The question of his fugitive status was an issue of which he was well aware at the time he made his submission to the Minister. While he did not have an opportunity to reply to the Czech Republic’s response, he not only had the opportunity to deal with the issues it canvassed, he availed himself of that opportunity.

59    In the submission to which the Czech Republic was responding (the letter of 28 September 2012), Mr Putt wrote:

Hala was not a fugitive when he left the Czech Republic for Australia in 1995 and an arrest warrant was only issued in the Czech Republic on 30 August 2010.

60    While he might have provided more information to support the assertion, he well knew at that time that his status as a fugitive was an important part of the Czech Republic’s case against him. That he may not previously have been described as “escapee” is of no moment. In context, it was synonymous with “fugitive”.

61    Furthermore, Mr Hala had already told the Minister that the delay had nothing to do with him. The precise words in his lawyer’s 2012 letter were:

Hala is not responsible for the delay.

62    True it is once again that he might have explained why he was not responsible, but he chose not to.

63    Some particular matters disclosed in the Office of the Municipal Public Prosecutor’s letter were not disclosed in the international arrest warrant. The letter stated that the police, “at the incentive of the Office of the District Public Prosecutor in Prague” asked Interpol on 30 December 1997 “again to interrogate R. Hála in the position of a suspect but did not repeatedly receive any response. As such the notification of the accusation could not be delivered to the accused, criminal prosecution could not start and the matter could not be suspended”. The letter also indicated (as we understand it) that, “once the resolution on commencement of criminal prosecution was issued”, attempts were made to serve Mr Hala but they failed because he did not stay at the given address. The letter continued:

The Police repeatedly asked the Interpol Prague – Interpol Canberra, Australia, to find out the current residence of the convict, however, with no results”.

64    This was the reason, the prosecutor continued, the proceedings were brought against him as “an escapee” in accordance with “section 302 et seq of the Criminal Procedure Code”.

65    By themselves, these were not, however, matters which were adverse to Mr Hala. Without more, the fact that the police may have had trouble locating him was entirely neutral. In any case, the purpose of the account was to explain the delay in prosecuting him. Mr Hala invited such an explanation in his representations to the Minister by stating that the Czech Republic had not provided one. This was information directed to rebut the inference that there was no explanation. There was, of course, a possible innuendo that he was evading arrest but that was the same innuendo carried by the term “fugitive” and the statement in the international arrest warrant that the proceedings could be brought against “those who avoid criminal proceedings by staying abroad or by hiding themselves”. As such, the Czech response did not raise any new matter of substance.

66    Procedural fairness does not generally require that a decision-maker disclose information the substance of which is already known to the person who may be affected by the decision: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [27], [30] (Rares and Jagot JJ); VEAL at [27]–[29]. Nor does it require a decision-maker to give an affected person the chance to comment on every nuance of what the decision-maker is considering, in the same way as judges are not required to produce draft reasons for judgment to the parties for their comments: Brock v Minister for Home Affairs [2011] FCAFC 167 (“Brock”) at [22] (Downes J, Yates J agreeing at [30], Katzmann J at [31]).

67    Secondly, while the “assertion” that Mr Hala was a fugitive was a credible one, there was apparently no evidence to suggest that he ever knew he was under suspicion or that the police were after him. For these reasons it is difficult to see what weight the Minister could give to the suggestion that he had fled or escaped the Czech Republic or gone into hiding in order to avoid prosecution.

68    Thirdly, contrary to the implication in Mr Hala’s submissions, the mere fact that there were numerous references to the Czech response in the Ministerial brief did not mean that any information in that response was relevantly new, adverse and significant to the Minister’s decision (Snedden at [202]).

69    Indeed, there is nothing to indicate that the information about which Mr Hala complained was at all significant. The Minister did not provide any reasons for his decision, so what matters he took into account in the exercise of his discretion can only be gleaned by inference (Brock at [15]). Mr Hala seems to have assumed that the Minister took into account everything the Department put to him. That may or not be the case but it is reasonable to proceed on the basis that it is. What is entirely up in the air, however, is the extent to which the Minister regarded as significant anything contained in (or more accurately annexed to) the Czech response, let alone the characterisation of Mr Hala as a fugitive from justice.

70    For a start, the Department did not treat the information as significant. It acknowledged in the Ministerial brief that “[t]he information before the Department is inconclusive as to whether Mr Hala knew of the allegations against him prior to his departure”. Arguably, implicit in Mr Hala’s assertion that he was not a fugitive was a representation that he did not know of them. Furthermore, the Department advised the Minister that it was open to him to consider the delay in the exercise of his discretion under s 22(3)(f). The Minister was never invited to give the information in question any weight. Nor was it suggested to him that the information was entitled to any weight. The inference to be drawn from the evidence before the Court is that the information was not significant to the Minister.

71    Fourthly, contrary to the submission made on his behalf, there was no evidence that, had these matters been put to him, Mr Hala would or could have made a submission about them. The only matter raised in argument was that he was located and interrogated by police in 1997. The letter Mr Putt wrote to the Department on 28 September 2012 asserted that the Czech authorities were aware of Mr Hala’s whereabouts since at least 1997 but made no mention of any police interrogation. If there had been such an interrogation, it would be at odds with the assertion in the letter from the Office of the Municipal Prosecutor. Yet, counsel for Mr Hala conceded that there was in fact no evidence of a police interrogation.

72    Fifthly, as the primary judge observed, Mr Hala knew that his representations to the Minister might be disclosed to the Czech Republic and there was nothing in the Department’s letter to Mr Hala to encourage an expectation that he would have a chance to comment upon its response before the Minister made his decision. The majority in Snedden endorsed the approach taken by the primary judge in this case.

73    The letter here was in relevantly identical terms to the letter sent to Mr Snedden.

74    It is true, as Mr Hala submitted, that the letter did not state that this was Mr Hala’s “one and only” opportunity to make submissions. Nevertheless, we agree with the primary judge that the language used in the letter conveyed that message. In other words, though it may not have been explicit, it was implicit. Certainly, as in Snedden, the letter contained no representation, either express or implied, that Mr Hala would be given the opportunity to reply to anything in the Czech response. The majority in Snedden considered this circumstance significant (at [191]). Moreover, in this case, as in Snedden, Mr Hala did not ask to be provided with the Czech response so that he could comment upon it.

75    Mr Hala insinuated in his submission that it was not open to the decision-maker to limit his obligation to provide procedural fairness to one opportunity to make submissions. If that is indeed what he was putting, it is too sweeping a statement and must be rejected in the light of the majority’s decision in Snedden.

76    For all these reasons we are not satisfied that the primary judge erred in concluding that the Minister denied Mr Hala procedural fairness by not affording him the opportunity to make submissions about the Czech Republic’s response.

Conclusion

77    The appeal should be dismissed with costs. There will be orders accordingly.

Associate:

Dated:    16 February 2015