FEDERAL COURT OF AUSTRALIA

de Bruyn v Ellison [2004] FCA 880

EXTRADITION – review of decision to surrender under s 22 of the Extradition Act 1988 (Cth) – whether Minister correctly addressed s 22(3)(b) of the Act – whether violence in prisons may amount to torture – whether Minister correctly addressed additional requirements imposed by regulations – whether addressing incorrect regulations with more favourable exceptions voids decision – whether condition of prisons a relevant consideration in deciding if extradition would be unjust, oppressive or incompatible with humanitarian considerations

Judiciary Act 1903 (Cth) s 39B

Extradition Act 1988 (Cth) ss 11, 16, 19, 22

Crimes (Torture) Act 1988 (Cth) s 6

Extradition (South Africa) Regulations 2001 regs 4, 6, Sch 1 art 3 par 2

Extradition (Republic of South Africa) Regulations subreg 5(4)

Extradition (Commonwealth Countries) Regulations

United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

De Bruyn v Republic of South Africa [1999] FCA 1344 referred to

Republic of South Africa v De Bruyn [1999] FCA 516 referred to

Foster v Minister for Customs and Justice (2000) 200 CLR 442 considered

The New Shorter Oxford English Dictionary

JACOB JOHANNES DE BRUYN v THE MINISTER FOR JUSTICE AND CUSTOMS, SENATOR CHRIS ELLISON

Q 44 OF 2004

DOWSETT J

8 JULY 2004

BRISBANE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

The application

1                     This is an application (purportedly pursuant to s 39B of the Judiciary Act 1903 (Cth)) for review of a decision (the “decision”) of the respondent (the “Minister”) under s 22 of the Extradition Act 1988 (Cth) (the “Act”) that the applicant (“Mr de Bruyn”) be surrendered to the Republic of South Africa (“South Africa”).  The Minister made the decision on behalf of the Attorney-General.  He concedes that review is available.

Facts

2                     Mr de Bruyn is a citizen of South Africa.  There is some uncertainty concerning the dates of his departure from that country and arrival in Australia.  He claims to have migrated to Australia on 22 January 2001, but South Africa alleges that he departed in 1992.  He was initially arrested in Australia in connection with these proceedings in October 1997.  To that extent, his claim must be incorrect. It is not necessary to  take that matter any further.  His former wife and his children live in this country.  His children were, at the time of the decision, aged 25, 22 and 16.  They do not live with him and have had little contact with him in recent years.

3                     On 24 June 1997, South Africa requested Mr de Bruyn’s extradition in order to prosecute him for fraud and theft.  The amount of 1.2 million rand was allegedly stolen from a bank in Johannesburg.  On 11 August 1997, the Minister issued a notice under s 16 of the Act, commencing the extradition process.  A magistrate determined that the applicant was not ‘eligible for surrender’ under s 19 of the Act.  This decision was set aside by Burchett J.  See Republic of South Africa v De Bruyn [1999] FCA 516.  An appeal against that decision was unsuccessful:  see De Bruyn v Republic of South Africa [1999] FCA 1344.  Mr de Bruyn, who had been at large, then absconded.  In February 2003, he was arrested in Queensland and remanded in custody pending a determination pursuant to s 22.  The Minister made such a determination on 29 January 2004.  The applicant seeks review of that decision.  The Minister gave no reasons for the decision but appears to have acted upon a departmental briefing paper.  The matter has proceeded upon the basis that the Minister’s reasons reflected the content of that paper.

Requirements for issue of a surrender warrant

4                     The Attorney-General may issue a warrant for surrender under s 23 if he or she has made a determination ‘under subsection 22(2) that a person is to be surrendered to an extradition country in relation to an extradition offence…’.  The Act authorizes extradition to a country which has been declared to be an ‘extradition country’.  South Africa has been so declared at all material times.  Subs 22(2) provides:

‘The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.’

5                     ‘Eligible person’ means a person eligible for surrender.  In the earlier proceedings in this Court, Burchett J determined that the applicant was eligible for surrender.  Subsection 22(3) relevantly provides that a person may be surrendered if:

‘(a)      the Attorney-General is satisfied that there is no extradition objection in relation to the offence;

(b)       the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture;

(c)        where the offence is punishable by a penalty of death–by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:

(i)        the person will not be tried for the offence;

(ii)       if the person is tried for the offence, the death penalty will not be imposed on the person;

(iii)      if the death penalty is imposed on the person, it will not be carried out;

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

(e)        where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:

(i)         surrender of the person in relation to the offence shall be refused; or

(ii)        surrender of the person in relation to the offence may be refused;

in certain circumstances – the Attorney-General is satisfied:

(iii)       where subparagraph (i) applies – that the circumstances do no 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.’

6                     Section 11 provides that regulations may be made under the Act to modify its application in respect of a particular country.  The Extradition (South Africa) Regulations 2001 (the “new regulations”) repealed the Extradition (Republic of South Africa) Regulations (the “repealed regulations”).  New reg 4 provides that application of the Act to South Africa is to be subject to a treaty of extradition (the “Treaty”) which is contained in a schedule to the new regulations.  The Treaty applies only to requests for extradition made after its entry into force.  New reg 6 provides that the repealed regulations continue to apply to extradition requests made before 1 August 2001.  That is presumably the date upon which the Treaty took effect.  The request in this case was made on 24 June 1997.  Mr de Bruyn contends that both the new regulations (including the Treaty) and the repealed regulations applied to the making of the decision.  The Minister submits that the repealed regulations applied.  I accept that submission.  Nevertheless, it seems from the briefing paper that the Minister made the decision in the mistaken belief that the new regulations applied.  I will return to this matter at a later stage.

Grounds for review

7                     In the course of these proceedings, Mr de Bruyn has generated a substantial number of documents, many of them of great length.  They contain much which is of general interest, rather than probative value.  Much is argumentative.  He was anxious to put more material before me.  Fortunately from all points of view, Mr de Bruyn had the assistance of counsel at the hearing.  I made it clear to counsel that I was not willing to act upon much of this material, either because it was not before the Minister or because it was argumentative or otherwise of no relevance.  I indicated to counsel that if he wished to adopt any part of that material as part of his address, he could do so, provided that he drew my attention specifically to the adopted part or parts.

8                     It seems that there are three primary grounds advanced in support of the application, namely:

·                 that Mr de Bruyn was denied procedural fairness;

·                 that the Minister erred in concluding that Mr de Bruyn would not be subjected to torture in South Africa; and

·                 that the Minister erred in not declining to surrender Mr de Bruyn on the basis that it would be unjust, offensive or incompatible with humanitarian considerations to do so.

9                     The Minister’s error as to the applicable regulations is not relevant to the procedural fairness point or to the torture point, both of which effectively arise under the Act itself.  However the error is relevant to the third ground.

Procedural fairness 

10                  Mr de Bruyn’s complaint of want of procedural fairness is based upon a perception that had he had more time to put material before the Minister prior to the decision, he would have done so and changed the outcome.  The additional material would have dealt with conditions in South African gaols.  A substantial amount of material concerning that issue was before the Minister.  Most of it was supplied by Mr de Bruyn.  In any event he was clearly given an adequate opportunity to put in such material as he thought was relevant.  When one has regard to the fact that extradition proceedings have, to Mr de Bruyn’s knowledge, been in train since 1997, it becomes clear that he had more than ample opportunity to identify the reasons for his wishing to resist surrender to South Africa.  Further, it seems that he was allowed a period of weeks in which to put material before the Minister.  There is nothing in this point.

Torture

11                  Pursuant to par 22(3)(b) of the Act, it was necessary that the Minister be satisfied that on surrender to South Africa, Mr de Bruyn would not be subjected to torture.  In the briefing paper provided to the Minister he was advised that:

‘South Africa acceded to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 10 December 1998.

There is no information available to the Department to support a conclusion that de Bruyn will be subjected to torture on surrender to South Africa.

You may therefore be satisfied that de Bruyn will not be subjected to torture if surrendered to South Africa.’

12                  Unfortunately, the word “torture” is not defined in the Act.  According to the Shorter Oxford Dictionary the word means relevantly:

‘... (the infliction of) severe physical or mental suffering;  anguish, agony, torment.  ...  The infliction of severe bodily pain as a punishment or as a means of interrogation or persuasion;  a form or instance of this.’

13                  In the Convention referred to in the briefing paper, the word “torture” is defined to mean:

‘... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’

14                  That definition has been substantially adopted in the Crimes (Torture) Act 1988 (Cth), save for the limitation in the Convention definition to acts inflicted by, or with the consent of a public official or other person acting in an official capacity.  Nonetheless it is clear that the Crimes (Torture) Act is so limited in its operation.  See s 6.

15                  Mr de Bruyn’s case is that in the South African prison system, violence is often used by prisoners against fellow prisoners for coercive purposes and that this is sometimes connived at by prison officials.  There is also a suggestion that from to time, prison officials encourage prisoners to offer violence to other prisoners for the purpose of reinforcing their own authority.  Whilst such conduct might fall within the definitions to which I have referred, it seems most unlikely that it was the intention of the Parliament that the Attorney-General be satisfied that no such event will occur before making a decision as to extradition.   Violence in prisons is not unknown; nor is corruption of prison officials.  It is to be expected that violence will occur in that context and that it will sometimes be motivated by a desire to intimidate or coerce.  Paragraph 22(3)(b) of the Act is directed at institutionalised torture by government authorities, not at occasional and unpredictable violence occurring in prisons, even with the connivance of corrupt prison officers.

16                  In any event, the mere fact that incidents of that kind have previously occurred in the South African prison system does not mean that it is likely that Mr de Bruyn will suffer in that way.  He has suggested that he might be subject to special attention because he is of Afrikaans extraction, well-educated, has left South Africa and because of his age.  These are mere assertions which do not seem to be supported by any evidence.  In any event, it cannot be said that the Minister addressed the wrong question or failed to address the issue.  Nor can it be said that a proper consideration of the evidence must inevitably have led to his not being satisfied that Mr de Bruyn would not be subjected to torture.  No relevant error has been demonstrated.

“… unjust, oppressive or incompatible with humanitarian considerations …”

17                  Pursuant to subreg 5(4) of the repealed regulations:

‘The Attorney-General may decline to issue a surrender warrant or temporary surrender warrant under Part II of the Act in relation to a person if:

(a)       the person is an Australian citizen; or

(b)       the Attorney-General, while taking into account the nature of the offence to which the extradition request relates and the interests of the requesting country, is nevertheless of the opinion that, in the circumstances of the case, it would be unjust, oppressive or incompatible with humanitarian considerations to surrender the person to that country.’

18                  This provision has been superseded by par 2 of Article 3 of the Treaty.  Subparagraphs 2(a) to (e) could not be relevant to this decision even if the new regulations, and therefore the Treaty, applied to it.  Subparagraphs 2(g) and (h) provide that extradition may be refused:

‘(g)      if the Requested State, while also taking into account the nature of the offence and the interests of the Requesting State, considers that, in the circumstances of the case, including the age, health or other personal circumstances of the person whose extradition is sought, the extradition of that person would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment; or

(h)       if, by reason of the trivial nature of the request, or the period of time since the person whose extradition is sought is alleged to have committed the offence or since he or she came to be at large, as the case may be, or because the accusation against the person accused is not made in good faith or in the interests of justice, it would be, having regard to all circumstances, unjust or oppressive to extradite that person.’

19                  The briefing paper demonstrates that the relevant officer approached the matter upon the basis that the Treaty and new regulations, rather than the repealed regulations, applied.  There is no reference to the repealed regulations, but numerous references to particular terms of the Treaty.  The assumption that the Minister made his decision upon the basis of the briefing paper suggests that he therefore failed to consider the correct question, namely the way in which repealed subreg 5(4) should be applied in this case.  However, because of the similarities between the two provisions, it is appropriate to examine the differences between the two provisions, the precise nature of the case advanced by Mr de Bruyn and the way in which it was dealt with by the Minister.

20                  Obviously, the test prescribed in repealed subreg 5(4) is not in the same terms as that prescribed in subpar 2(g) of the Treaty.  Under the repealed regulation, the Attorney-General is required to consider ‘the circumstances of the case’ and whether or not it would be ‘unjust, oppressive or incompatible with humanitarian considerations to surrender’ the relevant person.  Under subpar 2(g) of the Treaty he is to consider whether ‘the circumstances of the case, including the age, health or other personal circumstances of the person whose extradition is sought’ lead to the view that it would be ‘unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment’ to surrender the person.  The words ‘or too severe a punishment’ probably add nothing to the circumstances in which surrender may be declined.  Certainly, the observations made by Gaudron and Hayne JJ in Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [41]-[43] suggest that a broad view should be taken of the meaning attributable to similar words in the Extradition (Commonwealth Countries) Regulations (Cth).  In any event, Mr de Bruyn has had the benefit of any wider application which the words might arguably have. 

21                  The more relevant consideration for present purposes is whether or not the inclusion of the words ‘including the age, health or other personal circumstances of the person’ results in any change to the circumstances which are relevant to the Minister’s consideration; in other words, whether the expression ‘the circumstances of the case’ has a relevantly different meaning from the expression ‘the circumstances of the case, including age, health or other personal circumstances of the person …’.  In my view, those words do no more than make it clear that ‘the circumstances of the case’ include such personal considerations.  It may have been thought that the wording of repealed subreg 5(4) arguably limited the relevant considerations to those relating to the proposed criminal proceedings.  In any event, Mr de Bruyn’s personal circumstances have been treated as relevant to his case.  Again, the error can only have worked to his advantage.

22                  Mr de Bruyn makes numerous allegations concerning prison conditions in South Africa.  Both repealed subreg 5(4) and subpar 2(g) of Article 3 of the Treaty appear in documents which authorize extradition to South Africa.   Both provisions are designed to create exceptions to the general rule.  It is unlikely that the Parliament intended that the Attorney-General should address the general conditions in prisons in an extradition country in determining whether or not a person ought to be surrendered.  Such a consideration would be more conveniently conducted prior to the decision to identify a country as an extradition country or in drafting the treaty with that country and/or in making appropriate regulations for the purposes of s 11 of the Act.  This suggests that the words ‘the circumstances of the case’ should be construed as referring to the particular circumstances of the case in question.  That would require a consideration of any special consequences of possible punishment for the relevant person, but not a general consideration of the conditions in the relevant country’s gaols. 

23                  In par 21 of the briefing paper, the various discretionary grounds for refusal of extradition are identified.  In par 22 it is observed that ‘[n]one of these discretionary grounds for refusal are made out in this case for these reasons:  …’.  Various reasons then follow.  With respect to the operation of subpar 2(g), it is said:

‘De Bruyn has made a number of representations claiming that his surrender to South Africa would be oppressive.  A copy of these submissions is at Attachments D, E and J for your reference.  However, there is no substantial evidence supporting a claim that the surrender of de Bruyn to South Africa would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment.’

24                  Mr de Bruyn’s submissions are then discussed.  “Submission 1” concerned separation from his family, with which submission I am not presently concerned.  Under the heading “Submission 2” the paper observed that:

‘De Bruyn believes that the conditions in South African prisons are unfavourable.’

25                  Specific reference is then made to five newspaper or journal articles supplied by Mr de Bruyn which are summarized as alleging:

·                 corruption and abuse of inmates in South African gaols, including the rape of younger inmates;

·                 that men in prison in South Africa are at ‘particularly high risk of contracting HIV’ and that ‘a prison sentence is tantamount to a death sentence by HIV/AIDS’;

·                 that 6000 of the 10 000 prisoners released monthly from South African gaols are HIV positive, that deaths of prisoners (including those awaiting trial) from HIV/AIDS are increasing, that prisons are over-crowded and that there are long waiting periods for trial;

·                 that 45 000 prisoners die of AIDS-related diseases every year in South African prisons

·                 that prison warders have been known to use deliberate HIV infection as punishment for inmates who misbehave, ordering that infected prisoners rape them.

26                  The article then refers to Mr de Bruyn’s allegations that assaults and murders are regular occurrences in South African prisons, that the Mafia controls the prisons, that he will be a special target in prison because he is educated, charged with a white collar crime and because he migrated to Australia during the apartheid regime.  He also claims that he is too old to defend himself against younger and fitter prisoners.

27                  The briefing paper then refers to South Africa’s responses to these concerns.  It does not accept the number of HIV/AIDS-related deaths and asserts that, in any event, such numbers may reflect the level of HIV/AIDS deaths outside of the prisons.  It rejects Mr de Bruyn’s claim that he will be a special target and says that there is no reason to accept his assertion to that effect.

28                  There is then a “departmental comment” to the effect that if the death rate from AIDS/HIV in South African prisons is 7.75 per 1000, that is substantially higher than the rate of such deaths in Australian prisons (about 0.2%).  It is observed that this may simply reflect the ‘HIV/AIDS pandemic’ in South Africa.  It is then observed that ‘[t]here is no certainty that de Bruyn will contract HIV/AIDS if made to serve a sentence in a South African prison’.  The Department also rejects the assertion that Mr de Bruyn will be specifically targeted for violence or other mistreatment.

29                  South Africa supplied a report from JJ Fagan, the Inspecting Judge of Prisons, dated 31 March 2003.  It identifies some of the complaints of corruption which apparently had been ventilated in a Royal Commission (the “Jali Commission”) and the difficulties caused by over-crowding in the prison system, including HIV/AIDS infection and deaths therefrom.

30                  The accuracy of some of the material put before the Minister by Mr de Bruyn might be doubted.  For example, the suggestion that 45 000 prisoners die of AIDS related-diseases each year in South African prisons appears to be quite inconsistent with the suggestion that the natural death rate in prison, probably largely attributable to HIV/AIDS, is around 7.75 per 1000.  There are about 180 000 prisoners in South African prisons at any one time.  About 10 000 are released each month.  I infer that about as many are admitted each month.  Annual deaths are likely to be closer to the figure of 1169, which is suggested in other material as the figure in 2001, than to the figure of 45 000. 

31                  The material was, of course, largely untested, but there is no reason to doubt that the HIV/AIDS infection level in prisons is higher than in the general population in South Africa, and that levels of infection in South African prisons and in the general population are higher than in other countries, including Australia.  There is also no reason to doubt that on occasions, prisoners have used HIV infection as a threat or punishment and that corrupt prison officials have been involved in such conduct.  Nonetheless, Mr de Bruyn’s concern that he will be targeted for such treatment seems to be based on subjective fear rather than facts.  Obviously, his attempt to equate the risk of HIV/AIDS infection with the death penalty is without legal or factual justification. 

32                  The Minister was obliged to take into account the nature of the alleged offence and the interests of the requesting country, as well as the considerations raised by Mr de Bruyn.  The enforcement of the criminal law is an important aspect of any civilized society.  An accused person will readily find arguments for exemption from such enforcement.  He or she will always find it unpleasant to contemplate the consequences of a guilty verdict, particularly if imprisonment is likely.  Once Mr de Bruyn’s case is shorn of its hyperbole, particularly the assertion that any sentence of imprisonment is a death sentence because of the likelihood of HIV/AIDS infection, there is little in it which offers a basis for refusing to surrender him.  The conditions in South African gaols may be unsatisfactory, but South Africa’s interest in enforcing its criminal law is substantial.  There is no reason to believe that Mr de Bruyn will be raped or that he will otherwise fall foul of other prisoners or prison authorities. 

33                  Under both the repealed regulations and the new regulations and the Treaty, the Minister was required to determine whether the circumstances of this case should lead to a refusal of surrender.  The Minister considered all of the material put before him and decided to permit surrender.  There is no rational basis for suggesting that the decision was in any way affected by the erroneous application of the new regulations and Treaty.  The better view is that there is no difference in effect between the two regimes.  If there is a difference, application of the new regulations to the case was more favourable to Mr de Bruyn than would have been the application of the repealed regulations.  Mr de Bruyn has not demonstrated any operative error in the Minister’s approach to this aspect of the case.

Other matters

34                  It is not necessary to deal with subpar 2(h) of Article 3 which concerns trivial requests.  It does not apply.  It is, however, appropriate to point out that the alleged offence is by no means trivial.  Further, although a lengthy period of time has elapsed since its alleged commission, that is largely attributable to Mr de Bruyn’s own behaviour.  He left South Africa and, when it was determined that he was eligible for extradition from Australia, he absconded.  Since he was re-arrested he has resisted extradition upon grounds which are without any basis.

35                  Finally, Mr de Bruyn appears to have relied at some stage upon the United Nations Convention on the Rights of the Child, which provides that:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

36                  Mr de Bruyn’s argument is that if he is extradited to South Africa, he will be separated from his children and that this would be to their disadvantage.  It seems that he has not had a close relationship with them in any event.  There is also the question of their ages.  The matter was considered in the briefing paper.  It cannot be said that a proper consideration of the issue must necessarily have resulted in refusal of Mr de Bruyn’s surrender.

Conclusion and orders

37                  In those circumstances, Mr de Bruyn has demonstrated no error which would justify setting aside the Minister’s decision.  The application must be dismissed with costs.

Associate:

Dated:              7 July 2004