Federal Court of Australia

Rivas v Republic of Chile [2021] FCAFC 214

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the Respondent’s costs of this proceeding on a lump sum basis to be determined by a Registrar of the Court, unless agreed.

THE COURT DETERMINES THAT:

3.    The appellant is eligible for surrender, within the meaning of s 19(2) of the Extradition Act 1988 (Cth), in relation to the seven counts of aggravated kidnapping, contrary to Article 141 No.3 of the Criminal Code (Chile), for which her extradition is sought.

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

REASONS FOR JUDGMENT

THE COURT:

1    By Notice of Appeal dated 9 July 2021 the appellant, Ms Adriana Rivas, appeals from a decision of the primary judge in Rivas v Republic of Chile [2021] FCA 693 (Primary Judgment). In those proceedings Ms Rivas sought review, pursuant to s 21 of the Extradition Act 1988 (Cth) (Act), of a decision of Magistrate Stewart made on 29 October 2020, that Ms Rivas was eligible for surrender to the respondent, the Republic of Chile, pursuant to s 19 of the Act (Magistrate’s Decision).

2    The Republic of Chile is seeking to extradite Ms Rivas from Australia to Chile pursuant to an extradition request made on 6 August 2018. Ms Rivas’ extradition is sought to face prosecution for 7 counts of aggravated kidnapping, contrary to Article 141 No. 3 of the Criminal Code (Chile).

3    The Notice of Appeal identifies 17 grounds of appeal many of which overlap. The grounds of appeal can be grouped as follows:

(1)    Ground 1 challenges the primary judge’s characterisation of the extradition offence contained in the extradition request;

(2)    Grounds 2-9 complain that the primary judge failed to recognise that a “principle of legality” would be violated with respect to the requirements of s 19(2) of the Act;

(3)    Grounds 10-14 challenge the primary judge’s findings concerning supporting documentation in s 19(2)(a) and dual criminality s 19(2)(c) of the Act; and

(4)    Grounds 15-17 challenge the primary judge’s findings concerning extradition objections under s 19(2)(d) of the Act.

4    Ms Rivas’ appeal is brought pursuant to s 21(3) of the Act, which permits an appeal to the Full Court of the Federal Court of Australia from the Primary Judgment.

5    Despite disavowal by her counsel, the submissions advanced on behalf of Ms Rivas in this Court were substantially directed at undermining or contradicting the allegations that Ms Rivas has engaged in the conduct constituting the extradition offences for which her surrender is sought by the Republic of Chile. Those submissions misconceive the nature of the task before the magistrate in determining eligibility for surrender under s 19 of the Act. That task is not to assess the strength or weakness of the alleged extradition offences, or whether all elements of the Chilean offences can be proven to the requisite standard, rather, the task is to conduct a proceeding to determine whether the requirements of s 19 have been satisfied so as to render a person eligible for surrender to the extradition country. The process under s 19 of the Act does not require that the offences for which extradition is sought to be “made out in the material”. The extradition process does not involve a determination of guilt or innocence: Vasiljkovic v Commonwealth of Australia (2006) 227 CLR 614 (Vasiljkovic) at [33] and [34], per Gleeson CJ. It is no part of the magistrate’s function in a proceeding under s 19 of the Act to consider the appropriateness or otherwise of the Chilean authority’s decision to charge Ms Rivas with the extradition offences: Matson v United States of America [2016] FCA 1548 at [35]. 

6    With these principles in mind, we now turn to consider Ms Rivas’ grounds of appeal.

Ground 1

7    Ms Rivas, by ground 1, contends that the primary judge formed the view that she was ‘directly involved’ in the aggravated kidnapping of seven named individuals, rather than being alleged to be a co-perpetrator in the aggravated kidnapping offences.

8    The primary judge at [76], [79], [84], [103] and [104] of the Primary Judgment recognised that Ms Rivas was indicted as a co-perpetrator of the offences for which Ms Rivas’ extradition is sought. There was no mischaracterisation of the extradition offences by the primary judge. This ground must be rejected.

grounds 2-9

9    Ms Rivas, by grounds 2-9, contends that the primary judge failed to recognise that a “principle of legality” would be violated with respect to the requirements of s 19(2) of the Act. These grounds are based upon some asserted general principle prohibiting the retrospective operation of Chilean domestic criminal law. These submissions were not based upon the principle of legality as understood by Australian law, which was comprehensively dealt with by the primary judge at [26]-[47] of the Primary Judgment. For the reasons explained by the primary judge, there is no question that the aggravated kidnapping offences, for which Ms Rivas is sought to face prosecution in Chile, existed at the time of Ms Rivas’ alleged conduct. As consequence, these grounds must also be rejected.

grounds 10-14

10    Ms Rivas, by grounds 10-14, contends that the primary judge erred in concluding that the requirements of s 19 of the Act had been satisfied, and that Ms Rivas was eligible for surrender to the Republic of Chile in relation to the extradition offences.

11    The primary judge considered the supporting documents produced to the magistrate and was satisfied that a duly authenticated statement in writing, setting out a description of the extradition offences and the penalty applicable in respect of those offences, had been provided to the magistrate. The primary judge, at [72]-[86] of the Primary Judgment, analysed in detail the supporting documents provided to the magistrate and concluded that the requirements of s 19(2)(a) had been satisfied. We see no error in the primary judge’s analysis nor in the conclusion her Honour reached.

12    At [73], the Primary Judge set out the documents which comprised the statement of conduct, which may consist of a number of documents, as her Honour had recognised at [63], by reference to the applicable authorities. The Primary Judge at [75] of the Primary Judgment noted that there was no ground of review challenging the accuracy of the Magistrate’s summary of the statement of conduct, the Primary Judge set that summary out at [76], and also noted that Ms Rivas has been indicted as a co-perpetrator of the alleged offences. Contrary to the oral submissions advanced on the appeal, that summary contains a number of allegations about Ms Rivas’ knowledge of, and role in, what is alleged to have occurred at the Simón Bolívar Headquarters.

13    The primary judge considered the dual criminality requirement under s 19(2)(c) of the Act at [92]-[125] of the Primary Judgment and concluded that the magistrate was correct to find that Ms Rivas’ alleged conduct, as set out in the extradition request, satisfied those requirements. The primary judge correctly identified that the task is to measure the acts and omissions in the statement of conduct against the relevant Australian criminal offences which qualify as extradition offences and to see whether the offences contained within the conduct statement, if that conduct had occurred in Australia, would constitute an offence against the law of Australia which qualifies as sufficiently serious to be an extradition offence: Liem v Republic of Indonesia [2018] FCAFC 135; (2018) 265 FCR 251 at [121] – [122]. The function of a magistrate is not to ascertain whether the alleged acts or omissions constitute a crime in the requesting State as that will be a matter for the Chilean courts in this case.

14    In this appeal, much of Ms Rivas’ submissions were directed to the assertion that she is not guilty of the offences which are the subject of the extradition request. Guilt or innocence forms no part of the international extradition process: s 3(a) of the Act; Vasiljkovic at [33]-[34]. In this respect, s 19(5) of the Act prohibits the adducing and receipt of evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought. We detect no error in the primary judge’s analysis, nor in the conclusion her Honour reached that the extradition request satisfied the requirements of dual criminality under s 19(2)(c) of the Act.

grounds 15-17

15    Section 19(2)(d) of the Act requires a magistrate (and on the limited rehearing, the primary judge) to be satisfied that there are not substantial grounds for believing that there is an extradition objection in relation to the offences, as defined in s 7 of the Act. Ms Rivas’ grounds 15-17 contend that the primary judge erred in concluding that:

(a)    the prosecution was not a result of international political pressure (or otherwise politically driven when taken with the SBS television program) such that the extradition objection exception had not been made out pursuant to s 7(b) and (c) of the Act;

(b)    the judge made law (presumably the Chilean Supreme Court interpretation of the Amnesty Law and statute of limitation) represents the law of Chile rather than the written law (presumably the Amnesty Law or a literal textual interpretation of the Amnesty law) and did not give rise to an extradition objection under s 7(e) of the Act; and

(c)    the Amnesty Law and the statute of limitations did not bring about an end of the prosecution and constituted a violation of the double jeopardy rules which amounts to the retrospective prosecution of Ms Rivas.

16    Ms Rivas contends that an extradition objection exists under ss 7(b) and (c) of the Act by reason that her prosecution and extradition are politically driven, as evidenced by the extradition material which points to certain political opinions she expressed in an SBS television program (which predates the extradition request). This extradition objection was raised before the magistrate and the primary judge. The primary judge at [144] of the Primary Judgment observed that Ms Rivas’ submission is based on statements she made during the SBS television program which could be seen “as totally supporting the Pinochet regime and as such taken as justifying torture and otherwise being pejorative to those taken to have communist views”. The primary judge at [145] of the Primary Judgment noted that any comments Ms Rivas made in the documentary post-dated the institution of the prosecution against her in Chile. The primary judge found that to be dispositive of the objection. We see no error in the primary judge’s analysis and her Honour’s conclusion.

17    An extradition objection under s 7(c) of the Act requires a causal connection between the punishment the respondent might suffer on trial, after surrender and [her] political opinions: Republic of Croatia v Snedden [2010] HCA 14; (2010) 241 CLR 461 at 482, [69]-[70]. Ms Rivas adduced no evidence before the magistrate or primary judge of any relevant causal connection that she may be prejudiced, punished, detained or restricted in her liberty by the State at her trial, or in her sentence after trial, by reason of her political opinions. Ms Rivas, by grounds 16 and 17, submits that the effect of the Amnesty law is that she has been “pardoned” within the meaning of s 7(e) of the Act. The primary judge comprehensively considered this submission of Ms Rivas at [167]-[170] of the Primary Judgment, commencing correctly in our respectful opinion with the point that s 7(e) is concerned to ensure a person is not exposed to double jeopardy: see [167].

18     The Primary Judge concluded, firstly, that the Amnesty law (even if it were to apply) was not an assessment (of Ms Rivas’ criminal guilt) on the merits, such that it did not fall within the meaning of s 7(e) of the Act; and, secondly, even if the Amnesty law was available as a defence, that was a matter for domestic Chilean proceedings. We do not detect any error in the primary judge’s analysis nor in the conclusion reached.

19    For the reasons given, the appeal in relation to the extradition objections in grounds 15-17, must be rejected.

CONCLUSION

20    Each of Ms Rivas’ grounds of appeal must be rejected. That being the case, the Primary Judge was correct to determine that Ms Rivas was eligible for surrender within the meaning of s 19(2) of the Act.

21    Pursuant to s 21(6)(g) of the Act, the Court determines that the appellant, Ms Adriana Rivas, is eligible for surrender within the meaning of s 19(2) of the Act in relation to the seven counts of aggravated kidnapping, contrary to Article 141 No. 3 of the Criminal Code (Chile) for which her extradition is sought.

disposition

22    The appeal is dismissed.

23    Ms Rivas will pay the Republic of Chile’s costs on a lump sum basis to be determined by a Registrar of the Court unless agreed.

Associate:

Dated: 24 November 2021