FEDERAL COURT OF AUSTRALIA

Cabal v Vanstone

[2000] FCA 1306

JUDICIAL REVIEW – extradition proceedings – review of decision to issue notice – arrest warrants issued in Mexico – foreign warrants subject to amparo stay – where stay prevents immediate execution of warrant – criminal prosecution not otherwise impeded – purpose of extradition – where appellant seeks declaration that he is not an “extraditable person” within the meaning of the Extradition Act – where the court does not have jurisdiction to make declaration sought.

Judiciary Act 1903 (Cth) s39B(1) and (1A)

Extradition Act 1988 (Cth) ss 6, 16, 22

Extradition (United Mexican States) Regulations 1991 (Cth)

Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 cited

Foster v Minister for Customs and Justice (1999) 164 ALR 357 followed

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR referred to

Transport Workers Union v Lee (1998) 84 FCR 60 cited

Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 cited

Karst, Latin American Legal Institutions: Problems for Comparative Study (1966)

CARLOS CABAL (PENICHE) and MARCO PASINI (BERTRAN) v THE HONOURABLE AMANDA VANSTONE in her capacity as Minister of Justice for the Commonwealth, DAVID McDONNELL, BARRY BRAUN M and LISA HANNAN M

V 218 of 2000

DRUMMOND, NORTH and GYLES JJ

MELBOURNE

15 SEPTEMBER 2000

THE COURT ORDERS THAT:

1.      The appeal is dismissed.

2.      The appellants pay the costs of the respondents.

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

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from orders of Kenny J, who dismissed three applications for judicial review under s 39B(1) and (1A) of the Judiciary Act 1903 (Cth) ([2000] FCA 359; 173 ALR 63 (sub nom Bertran v Vanstone;  Peniche v Vanstone)).  Although we can ultimately deal with the issues quite economically because of the comprehensive reasons for judgment below, the circumstances are unusual and need to be explained.  For this purpose, it is convenient to substantially adopt for the purposes of this judgment the explanation of the factual background, the statutory context, the relevant Mexican law and the review application by the primary judge.

factual background

2                     The circumstances in which the applications were made were as follows.  The applicants in the three proceedings, Carlos Cabal Peniche (“Cabal”) and Marco Pasini Bertran (“Pasini”), are citizens of the United Mexican States (“Mexico”).  They left Mexico some years ago and have not returned there since.

Carlos Cabal

3                     Between 31 August 1994 and 15 May 1998, a total of thirteen warrants for the arrest of Carlos Cabal were issued in Mexico by Federal District judges in Criminal Matters.  The warrants for arrest allege the commission of what might loosely be termed banking offences.  Twenty-three of the alleged offences concern the contravention of various provisions of the Mexican Law of Credit Institutions.  Three of the alleged offences are for fraud.  All the offences allegedly occurred in Mexico City between 1993 and 1994. 

4                     According to a memorandum provided by the Attorney-General’s Department (“the Department”) to the Minister on 7 January 1999:

“The 23 offences against the Law of Credit Institutions allege that Cabal misused his position as President, major shareholder and member of the High Credit Committee of a bank, the Banco Union, to authorise loans and lines of credit to numerous companies whose solvency and ability to repay the loans was questionable.  It is alleged that these companies were, in the main, controlled by Cabal himself and the loans received by these companies ultimately used by Cabal for his personal purposes, and acquiring another bank, the Banca Cremi.  In some instances, the loans by Banco Union authorised by Cabal, which ultimately were received by the companies he controlled, were also used to benefit persons associated with him; in other instances money was diverted, with Cabal’s knowledge, from the accounts of other companies held at Banco Union to the accounts of the companies controlled by him to be used, ultimately, for his personal purposes.  The amounts involved in the criminal conduct which is the subject of the 23 offences against the Law of Credit Institutions range from US$50 to $100 million. 

…

The 3 fraud offences alleged against Cabal arise out of fraudulent scheme practised by officers in the Banco Union – with Cabal’s knowledge and authorisation – upon unsuspecting companies who approached the bank for loans.  Selected companies seeking loans from Banco Union were persuaded by officers in Banco Union to participate in a scheme in which the loans would ostensibly be granted to the companies but would, in fact, be diverted to third party companies called the “terminal accredited persons”.  The unsuspecting companies were told that the “terminal accredited persons” would pay them high rates of interest.  The unsuspecting companies were required to sign blank promissory notes by way of security and hand these to officers in Banco Union.  It is alleged that Cabal designed the scheme and authorised his officers in Banco Union to market the scheme to selected unsuspecting corporate customers.

The “terminal accredited persons” in fact, were paper companies or companies mainly controlled by Cabal.  It is alleged that neither Cabal nor his officers in Banco Union had any intention to ensure payment of high rates of interest by the “terminal accredited persons” to the unsuspecting victim companies.  The money was not repaid to the companies but rather it was used by Cabal for his own purposes.  At the end of the day the victim companies owed money to the bank but the “terminal accredited persons” were without any assets.  In this scheme, 3 companies are alleged to have been defrauded of approximately US$54 to $57 million in each case. 

A total loss of US$242,722,590 was allegedly suffered by Banco Union and the defrauded companies as a result of Cabal’s conduct.” 

Cabal was arrested in Australia pursuant to a provisional arrest warrant on 11 November 1998.  The warrant had been issued on 10 November 1998 under s 12 of the Extradition Act 1988 (“the Act”) on the application of Mexico.  Since 11 November 1998, he has been held in custody at Port Phillip Prison. 

5                     By Diplomatic Note received by Australia on 6 January 1999, Mexico requested Cabal’s extradition, relying on the thirteen arrest warrants that had been issued against him in Mexico.  On 7 January 1999, the first respondent, the Honourable Amanda Vanstone (“the Minister”) acting in the place of the Attorney-General, issued a notice pursuant to s 16(1) of the Act directed to the magistrate before whom Cabal was brought, stating that the request for his extradition had been received from Mexico.  The notice also recorded that the Minister was of the opinion that (1) Cabal was an extraditable person for the purposes of the Act in relation to Mexico; and (2) if his conduct had taken place in Australia at the time the extradition request was received, then that conduct would have constituted extradition offences in relation to Australia.  The notice further recorded that the Minister was not of the opinion that there was an extradition objection.  The s 16 notice given by the Minister on 7 January 1999 is the subject of the application in proceeding V 121 of 1999. 

6                     On 22 December 1998 and 7 January 1999, three additional warrants of arrest were issued in Mexico for Cabal’s arrest.  On 19 February 1999, a second provisional warrant, issued under s 12 of the Act on 16 February 1999, was executed against him.  By Diplomatic Note received by Australia on 11 February 1999, Mexico again requested Cabal’s extradition, relying on the three additional warrants as well as on one of the warrants relied on in the first request of 6 January 1999. 

7                     A memorandum provided by the Department to the Minister on 23 March 1999 stated:

“The second request seeks Cabal’s extradition in relation to 4 warrants ordering his arrest for the following 5 offences in Mexico:

a)      Tax Fraud Comparable contrary to Article 109 section I of the Federal Tax Code of Mexico (2 Counts);

b)      Falsely Declaring Losses contrary to Article 111, section IV of the Federal Tax Code of Mexico (1 Count);

c)       An offence contrary to Article 112, section V, paragraph (c) of Mexico’s Law of Credit Institutions (1 Count); and

d)      Money Laundering contrary to Article 115 Bis, section I, paragraph (b) of the Federal Tax Code of Mexico (1 Count).

The offence against Article 112, section V, paragraph (c) of Mexico’s Law of Credit Institutions was included in the first extradition request.  However, due to technical difficulties with the supporting documents presented in the first request, and following consultations between the Mexican authorities and Departmental officers, the Mexican authorities decided to remove this offence from the first request and present it in the second request.  The remaining four offences are additional to those included in the first request.

The offence of Falsely Declaring Losses and one of the counts for the offence of Tax Fraud Comparable were allegedly committed by Cabal in the State of Tabasco, Mexico, while he was President and administrator of a banana production and marketing company … .  Briefly, it is alleged that Cabal was responsible for [the company] filing a false taxation return for the 1993 fiscal year.  The company is alleged to have falsely claimed 13,016,976.00 Mexican Pesos worth of expenses and deductions to avoid the payment of Mexican Federal taxes. 

The offence against the Law of Credit Institutions and the Money Laundering offence arise out of Cabal’s alleged misuse of his position as President, major shareholder and member of the High Credit Committee of a bank in Mexico called the Banco Union.  It is alleged that in May 1994, at Mexico City, Cabal authorised a line of credit of US$50 million to a company … whose solvency and ability to repay the loans was questionable.  It is alleged that the funds from the line of credit ultimately benefited Cabal, directly and indirectly, as well as persons associated with him.  It is alleged that the funds from the line of credit were also used by Cabal for his personal purposes, including acquiring another bank, the Banca Cremi.  The funds allegedly passed through a number of entities controlled by or related to Cabal to conceal the fact that the funds advanced to [the company] by Banco Union were being diverted to Cabal’s own use. 

The second count for the offence of Tax Fraud Comparable alleges that Cabal falsely declared his income in his personal tax return for the 1993 fiscal year.  Cabal is alleged to have understated his income by 488,518,032.99 Mexican Pesos.”

On 30 March 1999, the Minister gave a notice in respect of Cabal under s 16(1) of the Act, recording her opinion (in the same terms as the notice of 7 January 1999) and stating that a second extradition request had been received from Mexico.  The notice given on 30 March 1999 was the subject of the application in V 222 of 1999. 

Marco Pasini

8                     On 18 January 1996, a warrant for the arrest of Marco Pasini was issued in Mexico by the Third Unitary Court of the First Circuit.  That court issued a second warrant for his arrest on 29 August 1996.  The offences alleged in both warrants arise out of Pasini’s involvement in the activities giving rise to the allegations against Cabal.  According to a memorandum provided by the Department to the Minister on 21 January 1999:

“The Mexican authorities allege that Pasini assisted his brother-in-law Carlos Cabal Peniche (“Cabal”), whose extradition is also being sought by Mexico, to defraud Banco Union. …

The first two counts allege Pasini assisted Cabal in relation to the making of  a fraudulent loan to a company … .  On 26 January 1994 the High Credit Committee of Banco Union, with Cabal’s approval, authorised a line of credit of US$80 million to [the company].  [The company] was controlled by Cabal.  It is alleged that [the company] did not have the capacity to repay these advances and that the funds were passed through a number of transactions before being diverted to Cabal’s own use.  Pasini is alleged to have assisted Cabal in relation to the offences arising from this loan because he allowed part of the funds obtained by [the company] pursuant to the line of credit to be passed through his cheque account.

It is alleged that 30,121,878.65 Mexican Pesos advanced to [the company] under the line of credit were paid into Pasini’s cheque account on 31 August 1994.  On the same day these funds were then combined with other funds in Pasini’s account to allow Pasini to write a cheque for 89,780,681.55 Pesos to Banco Union to purchase US$26,409,966.63 which were then paid into an account held by [the company]. 

The third offence alleges that in 1995, Cabal, while living in Spain, had a company called Xurtu S. L. incorporated.  Pasini, who by this time was also living in Spain, was appointed president of Xurtu.  It is alleged that part of the funds defrauded by Cabal from Banco Union were transferred from an account operated by Cabal’s lawyer in the US to Xurtu and then used by Pasini to pay Cabal’s living expenses to prevent Cabal being located in Spain.  Pasini was signatory to the Xurtu bank accounts in Spain.” 

Pasini was arrested in Australia pursuant to a provisional arrest warrant, issued under s 12 of the Act, on 27 November 1998.  Since 27 November 1998, he has been held in custody at Port Phillip Prison. 

9                     By Diplomatic Note received by Australia on 20 January 1999, Mexico requested Pasini’s extradition, relying on the arrest warrants that had been issued against him in Mexico.  On 21 January 1999, the Minister issued a notice pursuant to s 16(1) of the Act directed to the magistrate before whom Pasini was brought.  The notice recorded her opinion (in the same terms as the notices of 7 January and 30 March 1999) and stated that the extradition request had been received from Mexico.  The s 16 notice given by the Minister on 21 January 1999 was the subject of the application in V 120 of 1999.  During the course of the hearing of the appeal, counsel for Pasini informed the Court that the grounds of appeal relating to him would not be pursued.  It is therefore unnecessary to consider these grounds further.

statutory context

10                  The principal objects of the Act, as stated in s 3, are (i) to codify the law relating to the extradition of persons from Australia to “extradition countries” (as defined in s 5) and to New Zealand; (ii) to facilitate the making of requests for extradition by Australia to other countries; and (iii) to enable Australia to carry out its obligations under extradition treaties.

11                  Broadly speaking, under the Act, there are four stages in the process that may lead to the extradition of persons from Australia.  First, an extradition country seeking the extradition of a person from Australia can apply to a magistrate under s 12 of the Act “for the issue of a warrant for the arrest” of that person.  If the magistrate is satisfied by information on affidavit that “the person is an extraditable person in relation to the extradition country”, then the magistrate is obliged to issue a warrant for the arrest of the person:  s 12(1).  The magistrate is also obliged to provide the Attorney-General with both a report that the warrant has been issued and a copy of the affidavit.  Upon arrest under a s 12 provisional arrest warrant, the person is remanded by a magistrate in custody or on bail pursuant to s 15 of the Act. 

12                  An “extraditable person” is defined in s 6 of the Act as follows:

“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.”

An “extradition offence” is relevantly defined in s 5 of the Act as follows:

“(a)     in relation to a country other than Australia – an offence against a law of the country:

(i)                 for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or

(ii)               if the offence does not carry a penalty under the law of the country – conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia … .”

It is unnecessary for present purposes to set out the definition in the Act of “extradition objection”:  see s 7.

13                  What, for present purposes, can be called the second stage of the process begins when the Attorney-General receives an extradition request from an extradition country.  However, that the Attorney-General may receive an extradition request either before or after the person whose extradition is sought is arrested pursuant to the magistrate’s warrant.  Section 16 of the Act provides:

“(1)     Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.

            (2)        The Attorney-General shall not give the notice:

(a)                unless the Attorney-General is of the opinion:

(i)                 that the person is an extraditable person in relation to the extradition country ; and

(ii)               that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or

(b)          if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.

            (3)        As soon as practicable after the person is remanded under section 15 or the notice is issued, whichever is the later:

(a)          a copy of the notice; and

(b)          copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);

shall be given to the person.”

Section 17 provides for release from remand in the event that the Attorney-General decides not to issue a s 16 notice or for any other reason considers that the remand should cease: s 17(2). 

14                  Leaving aside the situation where a person consents to being surrendered under s 18, the third stage is reached when, following the giving of a s 16 notice, proceedings are taken before a magistrate under s 19 to determine whether the person whose extradition is sought is eligible for surrender in relation to the extradition offence or offences relied on by the extradition country.  A series of conditions or criteria are specified in s 19(2) by reference to which the magistrate must determine whether the person is eligible for surrender.  Those conditions or criteria do not include whether the person is an extraditable person, as defined in s 6.  Section 21 of the Act provides for review by this Court of the magistrate’s order under s 19(9) or (10) of the Act.

15                  Finally, once a person has been determined to be eligible for surrender and has become an “eligible person” (as defined in s 22(1)), the Attorney-General is then obliged to determine under s 22 whether the person is to be surrendered to the extradition country.  Section 22(3) sets out a series of conditions or criteria which must be satisfied before the eligible person can be surrendered.  In Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 (“Kainhofer”) at 538, Brennan CJ, Dawson and McHugh JJ observed:

“The powers conferred by the Act, other than those conferred on a court by s 21, are administrative in nature.  They are exercisable by different repositories in sequence, but none of them authorises the repository of a power to review the exercise of a power by another repository earlier in the sequence.”

16                  A critical part of the statutory context in the present case is the Treaty on Extradition between Australia and Mexico (“the Treaty”).  Pursuant to s 11(1)(a) and (1C) of the Act, reg 5 of the Extradition (United Mexican States) Regulations 1991 (“the Regulations”) provides that the Act applies in relation to Mexico subject to the Treaty (which is set out in the Schedule to the Regulations).  Article 1 of the Treaty records that:

“The Parties agree to extradite to each other, in accordance with the provisions of this Treaty, persons against whom criminal proceedings have been initiated or who are wanted for the imposition or enforcement of a judicial sentence involving deprivation of liberty for an extraditable offence.” 

Article 2 identifies what are, for the purposes of the Treaty, “extraditable offences”.  It states in par 1:

“For the purposes of this Treaty, extraditable offences are those offences, however named, which are punishable under the laws of both Parties by a penalty no less severe than deprivation of liberty for a maximum period of at least one year.”

Article 8, under the heading “Exceptions to Extradition”, states:

“Extradition shall not be granted when criminal proceedings can no longer be instituted by reason of lapse of time or any other cause in accordance with the law of either Party.” 

17                  The Treaty provides, in art 15, for requests for extradition to be made in “writing through the diplomatic channel”.  Under the heading “Documentary Requirements”, art 16 provides:

“(1)     The following documents, accompanied by a translation into the language of the Requested State, shall be sent with the extradition request:

(a)               a statement of the acts or omissions for which the extradition is requested, indicating as precisely as possible the time and place of their commission and their legal description;

(b)               the original or authenticated copy of the warrant of arrest, warrant of commitment, conviction or sentence, if imposed, or any other judicial order made under the laws of the Requesting Party which authorizes the arrest of the person and from which the existence of the offence and its commission by the person sought may be reasonably inferred;

…

(2)     To the extent permitted by the law of the Requested Party, extradition of a person may be granted pursuant to the provisions of this Treaty, notwithstanding that the requirements of this Article have not been complied with, provided that the person sought consents to an order for his extradition being made.”

Article 17 provides:

“If the details or documents sent with the request for extradition are insufficient or defective, the Requested Party shall inform the Requesting Party of the omissions or defects which may be corrected, before the request will be submitted to the judicial authority.”

18                  The decision on the request for extradition is also to be communicated to the requesting party through the diplomatic channel:  see art 21.1.

mexican law and facts

19                  The question before the Court arises out of certain legal events in Mexico, principally the grant of “amparo” stays.  (“Amparo” means, literally, “shelter” or “protection”.)  It is common ground that, aside from a warrant for a serious offence (as defined in Mexican law), an amparo stay on an arrest warrant prevents the responsible authorities named in the stay from executing the warrant.  It is also common ground that, providing an amparo stay against the relevant authorities exists, the applicants could not be immediately arrested on their return to Mexico.  (There was a debate as to whether the stays came into effect before the applicants returned to Mexico.)  The applicants’ case was that, following the grant in Mexico of amparo stays, aside from the warrant for money-laundering (which is characterised by Mexican law as a serious offence), there were no warrants in force for the purpose of s 6(a)(i) of the Act.  In forming her opinion under s 16(2)(a), the Minister acted, so the applicants say, on an erroneous construction of s 6(a)(i). 

The Mexican legal system

20                  Mexico is a federation of states.  The fundamental source of Mexican law is the Political Constitution of the United States of Mexico (“the Constitution”) which provides for a federal government of enumerated powers, divided into executive, legislative and judicial branches.  In addition, there are thirty-one states and a federal district (Mexico City).  Article 133 of the Mexican Constitution provides for a hierarchy of laws.  The Constitution is supreme, followed by treaties, federal laws, and federal regulations.  State constitutions and laws are subordinate to all federal legislation.  Finally, there are decrees.  The legal system is derived predominantly from European civil law traditions.

21                  Mexico has both state and federal courts.  The federal judiciary is comprised of four tiers:  the Supreme Court, Collegiate Tribunals, Unitary Tribunals, and District Courts.  Cases at the Supreme Court level are typically heard by one of four chambers according to subject matter (criminal, civil, administrative, and labour).  The Supreme Court may hear especially important matters or constitutional questions in plenary session.  Aside from the Supreme Court, the federal courts are divided into twenty-three geographically-organised circuits.  Mexico City constitutes the First Circuit, or simply the Federal District.  Within each circuit there are a number of judges at the Collegiate, Unitary and District levels.  The Collegiate Tribunals are made up of Magistrates who exercise the federal judicial review system called amparo.  Essentially, this is a system of judicial review that allows review of acts or decisions of the legislature, executive or judiciary on the grounds of infringing rights guaranteed by the Mexican Constitution.  The Unitary Tribunals comprise Magistrates who exercise criminal appeal jurisdiction as well as an amparo jurisdiction in relation to the judicial decisions of other members of the Unitary Tribunal and of the District Judges.  The District Judges exercise jurisdiction as trial judges in federal matters, including criminal trials.  They also have first instance amparo jurisdiction. 

Mexican criminal procedure

22                  The Mexican Constitution separates the executive role of investigating crime from the judicial role of determining guilt and imposing punishment.  Responsibility for the investigation and prosecution of crimes rests with the Public Prosecutor, which is part of the Ministerio Publico.  The Public Prosecutor is required to investigate offences that come to the Prosecutor’s attention.  This may happen in two ways:  by denuncia or by querella.  For most offences, it does not matter how the Prosecutor is made aware of the alleged offence.  The submission of a denuncia, or report of a criminal act, by a police officer or private individual obliges the Public Prosecutor to begin an investigation de officio, or by the Prosecutor’s authority.  There is also a class of offences that can only be investigated after receipt of a querella, or formal complaint, from the appropriate person or authority specified by the relevant law.  For example, the prosecutorial investigation of some financial offences may not commence without a querella from the Ministry of Finance (Secretaria de Hacienda Credito Publico).  The offences of which Cabal and Pasini are accused are of this description.

23                  If the Public Prosecutor, after investigation, considers that there is sufficient evidence to prove the commission of an offence and to establish the probable criminal responsibility of the person under investigation, the Prosecutor will prepare a document, known as a consignacion, setting forth the acts said to constitute the offence and referring to the evidence establishing the suspect’s probable responsibility.  This document is then presented to the appropriate judicial authority, who decides, on the papers submitted and without a hearing, whether it justifies the issue of a warrant for the arrest of the suspect.  For federal offences, the application for a warrant is presented to a District Judge.  If (as happened in Pasini’s case) the District Judge refuses to issue a warrant, the Public Prosecutor can appeal to a Unitary Tribunal.  If the judge decides to issue a warrant, the decision, with reasons, must be made in writing.

24                  Upon the issue of a warrant, the investigative process comes to an end and judicial proceedings commence.  At this point, the Prosecutor becomes a party to a penal action.  The judge who issues the warrant remains in control of all subsequent proceedings, with the exception of amparo proceedings.  Save, perhaps, for immaterial exceptions, a warrant cannot be executed outside the jurisdiction of Mexico.

25                  Once the arrest warrant issues, the judge serves notice to the Prosecutor who, in turn, commands the judicial police (police attached to the Prosecutor’s office) to search for and arrest the person named in the warrant.  Upon arrest, the police are required to take the detainee, without delay, before the judge who issued the warrant.  This must be done as soon as possible (and, in any event, within 24 hours).  Once notice of arrest is given, the detainee must appear before the court within 48 hours to render a declaracion preparatoria, or a preparatory statement.  This offers the detainee an opportunity to answer charges, although he may remain silent if he so wishes.  From the moment the notice of arrest is given, a Mexican judge has 72 hours to decide whether the person goes to trial or the charges should be dismissed.  This period may be extended to 144 hours at the request of the accused to provide the accused with an opportunity to submit evidence to refute the Prosecutor’s allegations. 

26                  Upon rendering a preparatory statement, the person will be released on bail or remanded in custody in accordance with the law of bail contained in the Federal Code of Criminal Procedure.  Bail is not available for serious offences, which are those offences set out in art 194 of the Code.  Money-laundering (the subject of a warrant included in the second extradition request for Cabal) is one such offence.  For non-serious offences (which include the offences in the balance of the warrants mentioned in the extradition requests for Cabal and the offences in the warrants mentioned in the extradition request for Pasini) bail is available, although the Public Prosecutor may petition the judge to refuse bail.  Judges may attach a variety of conditions to the grant of bail (e.g., the provision of a bond and reporting requirements).

Amparo proceedings

27                  An amparo proceeding is a form of judicial review that does not correspond precisely to any single common law concept.  In essence, an amparo suit is a collateral action by which private persons may seek redress for violations of their civil rights arising out of unconstitutional laws or acts of a public nature by a public authority.  The constitutional foundation of amparo is arts 103 and 107 of the Mexican Constitution.  They relevantly read (as in the first affidavit of Marco del Toro):

“Article 103.  The Federal Courts shall decide all controversies that arise:

I.                    From laws or acts of the authority that violate individual guarantees;

II.                 From laws or acts of the federal authority restricting or encroaching on the sovereignty of the States; and

III.               From laws or acts of State authorities that invade the sphere of federal authority.

Article 107.  All controversies mentioned in Article 103 shall be subject to the legal forms and procedures prescribed by law in accordance with the following rules:

I.                    The amparo suit shall always be prosecuted at the instance of the injured party;

II.                 The judgment shall always be such that it affects only private individuals, being limited to affording them shelter and protection in the special case to which the complaint refers, without making any general declaration about the law or act on which the complaint is based.

…

XII.            Violation of the guarantees set forth in article 16 in criminal matters and in articles 19 and 20, may be protested before the superior of the court committing the violation, or before the appropriate district judge, and in either case the decision can be appealed in accordance with the terms in section VIII [providing for review by the Supreme Court or Collegiate Tribunals].”

An amparo petition challenging an arrest warrant would fall within s 1 of Article 103. 

28                  The Amparo Law is a procedural code designed to give effect to these constitutional provisions.  Any gaps in the Amparo Law can be supplemented by the Federal Code of Civil Procedure:  Amparo Law, art 2, par 2. 

29                  A common lawyer may recognise similarities between amparo and judicial review, including the requirement of state action and limitations relating to standing and justiciability.  There is a salient difference, however, between the two:  that is the qualification expressed in art 107(II).  A successful amparo suit does not have the effect of invalidating an unconstitutional law, but merely suspends its operation with respect to the complainant.  That is, the amparo judgment only protects the petitioner from the application of the law or administrative or judicial act being challenged.  This is sometimes called the Otero Formula.  The outcome of a successful amparo petition is full restitution of the right violated by the authority:  Amparo Law, art 80.  The relief is limited to the complainant.  Authorities who are not specifically named as respondents in the proceeding are not bound by the judgment.  Further, as a general rule, an amparo suit or petition brought under s 1 of art 103 of the Constitution must specify the constitutional guarantees that are said to have been violated and the law or act of authority said to constitute the violation.  The relevant guarantees are those found in the first twenty-nine articles of the Mexican Constitution.

30                  A procedural distinction exists between what is known as “direct amparo”, which encompasses challenges to final judicial decisions and procedural errors that occur in the making of such decisions, and “indirect amparo”, which comprehends challenges to non-judicial official acts.  The Collegiate Tribunals generally have jurisdiction over direct amparo suits.  Rarely, the Supreme Court exercises jurisdiction in such matters.  The District Courts have original jurisdiction over “indirect amparo” cases.

31                  The deprivation of liberty resulting from the execution of an arrest warrant is regarded as a sufficient injury (within art 16 of the Constitution) upon which to file an amparo petition.  An amparo petition is the most accessible legal recourse open under Mexican law against a warrant to arrest.  A petition may assert invalidity upon various bases, including prescription and lack of probable cause.  An amparo challenge to the constitutionality of an arrest warrant must be initiated after the warrant has been issued but before its execution.  Pursuant to art 144 of the Amparo Law, a challenge to an arrest warrant is an indirect amparo action, and would normally be filed in the District Court.  The decision of the District Judge may be reviewed by a Unitary Tribunal.

32                  The parties to an amparo proceeding challenging the constitutionality of an arrest warrant are the injured party (the quejosa), the authorities responsible for the challenged conduct, any affected third parties, and the Federal Public Prosecutor.  Since, in arrest warrant cases, the accused will not know which specific authority has issued the warrant, it is common to list as respondents all judicial authorities who could have issued it, as well as any authorities who might be involved in its execution. 

33                  The substantial question in an amparo proceeding is whether the impugned conduct violates the constitutional guarantees.  The proceeding is designed to bring about a determination of that matter while maintaining the status quo in the interim.  As an incidental part of the amparo proceeding, an application may be made for the suspension or stay of the impugned act.  When application for a stay is made, an amparo judge must first determine whether a provisional stay should be granted.  Article 124 of the Amparo Law provides for the circumstances in which a stay will be granted.  It will not be granted if it would adversely affect social interests or public order.  A provisional stay is ordinarily granted where a challenged act would otherwise be completed before the amparo court has ruled on its constitutionality.  In arrest warrant cases, a provisional stay is normally granted, barring any defects in the application that would render it inadmissible.  A provisional stay provides for the quejoso’s protection until the definitive stay decision is made.  Where a stay is granted in accordance with art 124 of the Amparo Law, the amparo court must serve notice of it, ex officio, on the respondent authorities.  The authorities may then submit a preliminary report, stating whether or not they did the challenged act.  Once the responsible authorities have been identified, a definitive stay will be granted against them, maintaining the status quo until the completion of the amparo proceeding. 

34                  Article 136 of the Amparo Law states an amparo stay’s effect with regard to a criminal proceeding.  It provides (as in Karst, Latin American Legal Institutions: Problems for Comparative Study (1966) at 626, in accord with oral translations provided by Mr del Toro at ts 154 and by Mr Acosta at ts 356 and 361):

“If the challenged act affects personal liberty, the effect of the suspension shall be only that the complainant remains at the disposition of the District Judge, only with respect to his personal liberty, remaining at the disposition of the authority which should judge him when the order emanates from criminal proceedings with respect to a stay [continuance] of the same. 

…

If the suspension be granted in cases of orders for arrest, the District Judge shall order such means as he deems necessary to secure the presence of the complainant, so that he may be returned to the responsible authority if the amparo is not granted.

…

Bail can be revoked when there are sufficient grounds to presume that the complainant is attempting to evade justice.” 

By virtue of art 136, an amparo stay does not impede the progress of a criminal proceeding, at least up until sentence. 

35                  In accordance with art 136, where an arrest warrant is stayed, the District Judge may order such measures as he thinks necessary to ensure the quejoso’s submission to the responsible authority if amparo is ultimately denied.  Where the arrest warrant refers to non-serious offences, the amparo judge typically imposes conditions, such as the payment of a bond and reporting requirements, to ensure the quejoso’s submission to the authority of the criminal court.  One condition usually attaching to a stay is an order that the quejoso appear before the criminal judge to provide his preliminary statement.  In this way, the stay, provisional or definitive, does not interfere with the conduct of the criminal proceeding.  In the case of serious offences, where bail is not available, an amparo stay does not operate to prevent the quejoso’s arrest.  The arrest warrant remains capable of execution for the purpose of bringing the quejoso before the amparo judge instead of the warrant judge.  Article 136, par 5 establishes that, in such a case, the effect of the stay is to place the quejoso before the amparo judge for matters relating to his personal liberty and to bring him before the warrant judge for the purpose of continuing the criminal proceeding.  A decision to grant or refuse a suspension, at both the provisional and definitive stages, may be appealed to a Collegiate Tribunal.

36                  The final stage in an amparo proceeding is a hearing on the merits, after which the judge grants or denies amparo.  In arrest warrant cases, if amparo is granted (and upheld on appeal, if any) the effect will be to direct the judge who issued the warrant to cancel the warrant or to correct its deficiencies.  The judge who issued the warrant is obliged to abide by the decision of the amparo judge.

THE AMPARO PROCEEDINGS

37                  Messrs Cabal and Pasini have both initiated amparo proceedings challenging the issue of the arrest warrants relied on by Mexico in making its extradition requests.

CARLOS CABAL

38                  On 18 December 1998, the Fifth District Judge in Criminal Matters of the Federal District granted a provisional stay against the execution of the thirteen warrants of arrest that were relied on in Mexico’s first extradition request.  The provisional stay granted was :

“to the only effect that things may remain in the state in which they presently are and if the warrant of arrest has not yet been executed, then that the complainant not be deprived of his liberty as a consequence of those warrants of arrest, [up] until the responsible authorities have been notified of the resolution taken on the final stay, provided that the offence for which [the] said warrant of arrest was issued is not one such that, the law expressly prohibits to release the accused under bail.  This preventative measure shall only be effective if the complainant, when returning to the national territory, should comply with the [stipulated] requirements.” 

Those requirements were the provision of a bond certificate, and that Cabal appear before the responsible authority :

“within a term of three days, to be counted as from the time when the stay that is hereby being granted becomes effective, in order to make his preparatory statement, and as many times as he may be summoned in the criminal procedure in which he is accused, not to leave the district where the procedure is carried out or his place of residence, observing the instructions given by the police for his custody, all this in the understanding that, should he not comply with any of the security measures which have been mentioned above, this stay shall be rendered invalid.”

An application for a provisional stay of extradition was refused on the grounds that there was a public interest in securing performance of the Treaty and that the Amparo Law “cannot have any effect beyond [Mexican] frontiers”.

39                  On 1 February 1999, the same judge granted a definitive stay of execution of the thirteen warrants in substantially the same terms as the provisional stay.  Again, a stay of extradition was denied.

40                  On 22 February 1999, the Third District Judge in Criminal Matters in the Federal District granted a provisional stay on the execution of an arrest warrant, issued in Mexico on 7 January 1999, that formed part of Mexico’s second extradition request for Cabal.  The stay was granted:

“for the claimed acts, so that things may remain in the state in which they presently are and he not be deprived of his personal liberty as a consequence of an impugned warrant of arrest, provided that the offence for which the said warrant of arrest was issued is not one such that, because of its graveness, the law expressly prohibits to release the accused, or if said accused had been caught in flagrante delicto.”

There were further terms of the stay that:

“This preventative measure shall only be effective if the above mentioned complainant should comply with the following security measures:  to show before this court a bond certificate in the amount of one hundred thousand pesos, once he has entered the national territory, by virtue of the fact that in his complaint for guaranties the complainant has informed this court that he has been detained in the city of Melbourne, Australia; to appear to sign the ‘control of stays’ book of this court on every Monday or the following working day should the Monday not be a working day, as well as to appear before the authority that has issued the warrant of arrest being claimed, within a term of three days, to be counted as from the time when the stay that is hereby being granted becomes effective, in order to make his preparatory statement, all this in the understanding that, should he not comply with any of the security measures which have been mentioned above, this stay shall be rendered invalid and the bond certificate that has been submitted shall be forfeited.

On the other hand, if the impugned warrant of arrest is regarding a crime that, in accordance with the law, it is not permitted to grant temporary release on bail, this provisional stay is granted to the sole effect that once the contested warrant of arrest has been executed, the complainant, wherever he is detained, be at the disposal of this court as regards his personal liberty and at the disposal of the authority in charge of the criminal procedure for the continuation of the said procedure.” 

(The word “impugned” has been substituted for the word “invalidated” in the translation.  Comparison with other translations of the same text before the Court indicated that that was what was intended.  In any event, no-one suggested that the relevant warrants have yet been declared invalid.)  An application for provisional stay of extradition was denied.

41                  On 29 March 1999, the same judge granted a definitive stay of execution of the relevant warrant in substantially the same terms as the provisional stay granted on 22 February 1999.  Once again, an application for a stay of extradition was denied.

42                  On 16 June 1999, the Third District Judge also granted a provisional stay over another warrant that formed part of Mexico’s second extradition request.  She granted a definitive stay on 30 June 1999.  These stays were in substantially the same terms as the provisional stay granted on 22 February and 29 March 1999, to which reference has been made.

43                  On 22 February 1999, the First District Judge in Criminal Matters of the Federal District granted a provisional stay of an arrest warrant for Cabal, issued in Mexico on 22 December 1998, that also formed part of Mexico’s second extradition request for Cabal.  The terms of the provisional stay differed from the other stays mentioned thus far.  This stay relevantly read:

“On the grounds of sections 124, 124 bis and 138 of the law on the subject, the provisional suspension of the arrest order … is granted as requested, provided such order does not refer to crimes considered to be serious under the law, for the purpose of maintaining things in their status quo and that the complainant is not deprived of his freedom because of the arrest order until the liable authorities are notified of the resolution regarding the definitive suspension on the grounds of section 139 of the mentioned legal rule.  This precautionary measure will be effective as of now but will cease to have effect if the complainant fails to comply with the following requirements:  to grant before this District Court a deposit bill for the amount of one hundred and fifty thousand pesos within five days of notice of this decision having been served.  … [I]n case he is extradited to this country, he must appear before the judge hearing his case, within three days of his return to this country, in order to make his preparatory statement”

There were further conditions to be met upon Cabal’s return, but it is unnecessary to set them out here. On 22 March 1999, a definitive say was granted in essentially the same terms as the provisional stay. On 18 December 1998, there was a provisional stay and, on 1 February 1999, a definitive stay on the warrant relied on in both Mexico’s requests for Cabal’s extradition.

.

review application

44                  Cabal challenged the Minister’s decisions to give each of the notices under s 16(1) of the Act.  Cabal claimed that in each instance:  (1) the Minister erred in law in forming the opinion that the applicant was, at the relevant time, an extraditable person in relation to Mexico:  see s 16(2)(a)(i); (2) the Minister erred in exercising the discretion conferred by s 16(1) to issue a notice; and (3) the extradition request made by Mexico to Australia was invalid.

45                  The grounds relied on to make out (1) above were the following: 

(a)               The Minister acted on an erroneous construction of the expression “warrant … in force for the arrest of a person” in s 6(a)(i) of the Act.

(b)               The Minister failed to take into account matters that she was bound to take into account in forming her opinion, namely, (i) in relation to the notices against Cabal, the existence of amparo stays; (ii) in relation to the notice against Pasini, the existence of an amparo stay, the terms of which were capable of being amended to correct any error; and (iii) in relation to the second notice against Cabal, that the money-laundering offence was prescribed by Mexican law, or that there was a substantial body of legal opinion to the effect that it was so prescribed.

(c)               Each of the Minister’s decisions to issue a notice was so unreasonable in the circumstances that no Minister, properly advised of the relevant facts and properly instructed as to the law, could have formed the opinion that the applicants were extraditable persons.

(d)               Mexico was in breach of its duty to make honest and fair disclosure of the relevant facts in its possession. 

(Broadly speaking, much the same grounds were relied on to support (2) above.)

46                  In order to establish (3) above, Cabal alleged that none of the requests complied with the Act or the Treaty, because none informed Australia about the amparo stays or the relevant prescription period on the money-laundering offence (alternatively, about a body of legal opinion that the offence was prescribed).

47                  The relief sought by Cabal included:

(1)               orders in the nature of mandamus against the Minister directing her to exercise properly the power conferred by s 16(1) of the Act;

(2)               orders in the nature of certiorari against the Minister setting aside her decisions to give the s 16 notices;

(3)               injunctions restraining the Minister and relevant respondent magistrates from taking any steps in reliance upon the s 16 notices;

(4)               declarations that the Minister’s decisions to issue the s 16 notices were invalid;

(5)               declarations that:

(a)    the applicants are not “extraditable persons” for the purposes of ss 6 and 16 of the Act;

(b)   there is no authority under the Act for the applicants’ detention; and

(c)    the money-laundering offence is not an extradition offence within the meaning of the Act, as modified by art 8 of the Treaty; and

(6)               orders in the nature of habeas corpus directing the release of the applicants from custody.

judgment below

48                  Relief was denied.  The findings included the following:

(1)       A warrant “in force” for the purposes of s 6(a)(i) may include a valid warrant subject to a stay.

(2)               There was respectable Mexican opinion that an “amparo” judge has the authority to impose a condition that makes the efficacy of a stay conditional upon the relevant applicant’s return to Mexico.

(3)               The judge was not satisfied that all of the amparo stays took immediate effect upon pronouncement.

(4)               At the time of giving the first notices neither the Minister nor her departmental officers knew about the amparo stays.

(5)               The Minister did consider the amparo stays on the warrants relied on by Mexico in the second extradition request for Cabal.

(6)               The Minister took the view that, as a matter of Mexican law, the stays did not come into effect until the applicants re-entered Mexican territory.

(7)               If the Minister acted on an erroneous understanding of the effect of the stays, then that error (as to Mexican law) was merely an unreviewable error of fact.

(8)               The Minister was not bound to consider the issue of prescription in issuing a notice made under s 16.

(9)               Cabal did not establish the facts necessary to establish prescription.

(10)           The Minister’s failure to obtain further information about the stays and the prescription period was not so unreasonable that no reasonable Member could have taken that course.

(11)           There was no basis upon which it could be said that any duty to inquire (which might exist) arose in relation to the 7 January notice.

(12)           If there was a duty to inquire in relation to the 30 March 1999 notice, or the money-laundering prescription, then it was satisfied on the facts.

(13)           Mexico had no general duty of good faith or disclosure.

(14)           The Treaty did not require Mexico to send a copy of the amparo stays with its extradition requests.

(15)           Even if there were an obligation of good faith, the evidence did not establish breach.

issues on appeal

49                  By the notices of appeal, Cabal sought the following relief:

(1)               A declaration that he is not an “extraditable person” within the meaning of s 6 of the Act.

(2)       A declaration that the decisions of the first respondent to issue the notices under s 16 of the Act were invalid and provide no lawful basis for his detention.

(3)       An order against the first respondent in the nature of certiorari quashing these decisions.

(4)       A declaration that there is no authority under the Act for his continued detention.

(5)               An order in the nature of habeas corpus directing his release from custody pursuant to the Act.

decision on appeal

second cabal notice

50                  It is convenient to first discuss the issues in relation to the second Cabal notice because, by then, the Minister was aware of the amparo orders. 

51                  The effect of s 16(2) is that the validity of the notice depends upon (inter alia) the Attorney General being of the opinion that Cabal was an extraditable person in relation to the extradition country.  Whether Cabal was, in truth, an extraditable person in relation to the extradition country has no direct relevance to the issue.  In our opinion, the attack upon the validity of the notice founded upon the proper construction of s 6(a)(i) was misconceived.  Cabal’s arguments are sufficient to establish that there remains a real issue as to the question of construction.  However, even if, contrary to the opinion of the primary judge, a warrant for arrest which is stayed is not “in force” within the meaning of s 6(a)(i), there is nothing in the evidence to support a finding that the Minister acted upon a contrary construction of that section in coming to the decision to notify. 

52                  The advice which was tendered to the Minister at the time the decision was made was that the amparo stays were not operative, so leaving the warrants for arrest in force.  If the amparo stays had not been in operation, then the advice was both demonstrably correct and involved no departure from the construction of s 6(a)(i) which is contended for by Cabal.  Furthermore, assuming the amparo stays to be a matter which the Minister was obliged to take into consideration, she plainly did just that.  The correctness of the advice which the Minister received and, it may be presumed, acted upon, is not relevant to the grounds available for judicial review of the decision.  The construction and effect of the amparo orders made in Mexico in the present case, being matters of foreign law, are matters of fact rather than law for the purposes of judicial review of this decision.

53                  Assuming, for the purposes of the argument, that there may be circumstances in which a decision-maker should make further inquiries, as with the primary judge we can see no basis for the operation of such a principle in the present case.  The inquiries which the Minister’s advisers made of Mexico as to both the amparo stays and the issue of prescription were appropriate, and the replies received satisfactory on their face.  We need not repeat what the primary judge had to say on this point. 

54                  We cannot see that any obligation as to the good faith which Mexico may have had can have any impact upon the second notice.  Whilst aspects of the communicated position of Mexico as to the application of its laws in this case may be debateable, even if there were an obligation of good faith it would not extend beyond expressing a bona fide view as to the correct legal position.  There is no basis for concluding that the views expressed in relation to the second notice were not genuine.  We agree with the manner in which this issue was dealt with by the primary judge.

55                  The issue of so-called prescription or, as we might put it, limitation of action does not find its way into the meaning of extraditable person in s 6, the meaning of an extradition objection in s 7, or in the text of s 16.  Attention was drawn on behalf of Cabal to Article 8 of the Treaty, which is in the following terms:

 “Extradition shall not be granted when criminal proceedings can no longer be instituted by reason of lapse of time or any other cause in accordance with the law of either Party.”

Article 16(1)(c) requires that the following should be sent with the extradition request:

 “(c)    a statement of the basis of the laws relating to the offence or offences which are the subject of the request and a statement of the punishment that may be imposed and the provisions relating to the period of limitation or prescription;”

That requirement is obviously for the purpose of enabling consideration of Article 8.  As defences are not able to be investigated by the magistrate under s 19 or the Court on appeal under s 21, the issue presumably is to be considered by the Minister in the exercise of the various discretions under the Act, including s 6.  However, it does not follow from the fact that the Minister might relevantly elect to consider prescription in exercising the discretion under s 16 that the Minister was bound to do so.  The primary judge, for example, took the view that the matter most naturally arose in the context of s 22.

56                  Even if that be wrong, the issue of prescription was squarely raised with the Minister on behalf of Cabal prior to the decision being made, and, as we have said, was the subject of consideration in the advice before the Minister.  Again, the question of Mexican law involved is a question of fact.  As we have said, we agree with the primary judge in rejecting any claim of bad faith on the part of Mexico or unreasonableness by the Minister in dealing with this issue.  Furthermore, if it were legitimate to consider the correct conclusion based upon the evidence of the experts which was called, we see no reason to depart from the conclusion of the primary judge that Cabal failed to establish the necessary proposition.

57                  We agree with the conclusion of the primary judge that there was no relevant unreasonableness by the Minister established in relation to the decision or the decision-making process.

first cabal notice

58                  The situation in relation to the first notice differs from the second because neither the Minister nor her advisers were aware of the amparo orders when the decision was made and the prescription issue does not arise.  We cannot agree that by any process of reasoning it could be said that, on the facts here, the Minister is fixed with the knowledge of the Mexican authorities which was not communicated to her.  There was no deficiency on the face of the documents which were forwarded which would enliven any duty which may exist to make further inquiries.  It was not unreasonable to fail to inquire further. 

59                  Even if there were a duty of good faith lying upon Mexico to volunteer information as to the amparo stays which would invalidate the notice, we would not disturb her Honour’s conclusion that there was no breach of any such duty in the circumstances of this case.  It is not established that the Mexican authorities knew of the amparo stays at the relevant time.  We note, however, that Article 16 of the Treaty governs the duty of Mexico in relation to the supply of supporting documents and information, and it would be a large step to superimpose any such added obligation in connection with a treaty solemnly negotiated between the parties and reduced to writing.

declaratory relief

60                  This litigation takes the form of applications for judicial review under s 39B(1) and (1A) of the Judiciary Act 1903 (Cth) of decisions of the Minister under s 16 of the Extradition Act 1988 (Cth).  It is beyond the jurisdiction conferred on this Court by these provisions of the Judiciary Act to grant the declaration of critical importance to Cabal that he is not an ‘extraditable person’ within the meaning of s 6 of the Extradition Act.  In Foster v Minister for Customs and Justice (1999) 164 ALR 357, Drummond J said, in dealing with the scope of this jurisdiction at 359 - 360:

“But this court’s power to grant declarations in relation to matters within its jurisdiction is, in cases involving challenges to administrative decisions, circumscribed by clear limits:  “It is confined by the considerations which mark out the boundaries of judicial power” (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582; 106 ALR 11).  When the jurisdiction of this (or any federal court) is invoked to challenge an administrative decision, the court is confined to exercising judicial power: since it is not permissible for the court to exercise administrative power, it cannot conduct a merit review of the decision, that is, an inquiry to determine the correct or most appropriate outcome.  Its role is limited to determining whether the administrative decision is within the power conferred on the official and whether the decision-making process, in so far as the decision-maker was bound to comply with a particular process, has been followed:  see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-1; 66 ALR 299 and Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6; 93 ALR 1 at 25 …”

61                  Whether Cabal was an “extraditable person” when the Minister issued the two notices is not an issue for determination in this litigation.  It is but one of the matters about which the Minister had to hold an opinion before the power conferred by s 16(2) the Extradition Act to issue notices here challenged arose.  The Minister’s exercise of this power or, as it is put by Cabal in the alternative, the Minister’s decision to issue these notices, is judicially reviewable, though dependent on the Minister forming her opinion that Cabal is an “extraditable person”.  But it is reviewable by this Court only on the narrow grounds referred to in cases such as Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275 - 276.  This Court’s limited power of review of the Minister’s decisions does not extend to determining for itself whether Cabal was an “extraditable person” at the dates of issue of the notices.

62                  Cabal, by his notices of appeal, sought declarations that he was not an “extraditable person” when the notices were issued, as a basis for further declarations as to the invalidity of those notices and the unlawfulness of his continued detention.  For the reasons given, this Court’s jurisdiction does not extend to making any of those declarations.  Cabal also contends that this Court has jurisdiction to make a declaration that he is now not an “extraditable person”. In so far as Cabal may have suggested that the Court should make this declaration to arm him with an argument to put to the Minister if and when the Minister comes to consider whether, pursuant to s 22, he is to be surrendered, that invites the Court to go beyond the jurisdiction conferred on it by s 39B the Judiciary Act.

63                  Put another way, there is no justiciable issue between Cabal and the Minister as to his actual status as an extraditable person pursuant to the Extradition Act.  Such an issue is not created by his assertion that he has that status, or, indeed, by any contrary assertion by the Minister.  No prerogative relief could be granted in relation to the issue.  A declaration would not settle any actual controversy. 

64                  There being no issue which the Court must decide in order to resolve this litigation as to whether Cabal is now an “extraditable person”, no matter has arisen under the Extradition Act or any other law of the Parliament within the meaning of s 39B(1A)(c) the Judiciary Act that would give this Court jurisdiction to make such a declaration.  See Transport Workers Union v Lee (1998) 84 FCR 60 at 65 - 66.

65                  Even if the Court were to have jurisdiction to make such a declaration, the facts now governing whether Cabal is an “extraditable person” may cease to control that issue if and when the Minister comes to exercise the power to make a surrender decision under s 22 the Extradition Act by reason, eg, of the final determination of the amparo proceedings: such a declaration would therefore be hypothetical, in the sense referred to in Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 at 414 - 415, and should not be made for that reason also.

orders

66                  The appeal should be dismissed, with costs.

Associate:

Dated: