FEDERAL COURT OF AUSTRALIA

O’Donoghue v Honourable Brendan O’Connor (No 2) [2011] FCA 985

THE COURT ORDERS THAT:

1.    The applicant’s oral motion of 7 July 2011 for an adjournment be dismissed.

2.    The application dated 25 March 2011 be dismissed.

3.    The applicant pay the costs of the respondents to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1    The applicant seeks review of the decision of the first respondent (the Minister) made on 23 March 2011 pursuant to s 22 of the Extradition Act 1988 (Cth) (the Extradition Act) (the s 22 decision) that the applicant be surrendered to Ireland. He also seeks the grant of a writ of certiorari and other relief in relation to a notice issued under s 16 of the Extradition Act as well as in relation to the warrant issued under s 19 of that Act.

2    At the hearing on 13 June 2011 the applicant was represented by Mr Greg McIntyre SC. Mr McIntyre, in the course of argument, effectively conceded that the written submissions filed, and which were almost entirely drafted by the applicant personally, were without merit, other than a new submission concerning the alleged failure by the Minister to take into account the United Nations Convention on the Rights of the Child.

3    After this first hearing the Court was informed that by some administrative oversight the applicant, who had been brought to the precincts of the Court to a holding cell at about 9.30 am, was nonetheless not brought to the Court where his hearing was conducted.

4    Following a written complaint by the applicant that he had thereby suffered prejudice, I agreed to reconvene the hearing of his application to enable him to make submissions as to this alleged prejudice. The matter came back on before me on 7 July 2011 at which time the applicant by oral motion sought an adjournment for three months to enable him to re-argue his application. He submitted that I had badgered his counsel at the original hearing and that in effect, he had been denied a fair hearing. The Minister opposed this application. At that time I adjourned the matter to a date to be fixed.

5    The applicant has had a hearing in relation to all of his grounds of appeal. His complaint, which I have articulated, is not one capable of resolution by me. Accordingly there is no basis for an adjournment and I would refuse the applicant’s motion. The matter should proceed to judgment.

Background

6    Senior counsel for the applicant accepted the correctness of the following factual and procedural background as described by the solicitors for the respondents. He also, during the course of argument effectively conceded the correctness of the respondents’ submissions as to the law which I have to a large extent replicated later in these reasons.

7    The applicant is a citizen of the Republic of Ireland (Ireland) who first arrived in Australia in 2002 as the holder of a visitor visa. On 15 November 2002 the applicant was granted a Subclass 457 Business (Long Stay) visa, and on 14 November 2003 he applied for an Employer Nomination (Residence) Subclass 856 visa.

8    On 24 March 2004, a Judge of the District Court of Ireland issued 16 warrants for the arrest of the applicant in relation to eight offences of obtaining property by false pretences and eight offences of fraudulent conversion (the extradition offences).

9    On 26 May 2004 Ireland requested the extradition of the applicant from Australia in relation to the extradition offences.

10    On 21 December 2004 a provisional arrest warrant was issued under s 12(1) of the Extradition Act. The applicant was arrested in Perth on 21 December 2004 and was granted bail by Magistrate Brown on 24 December 2004.

11    On 23 December 2004, Ireland submitted further documents in support of its extradition request to the Australian Embassy in Dublin.

12    On 5 January 2005 the then Attorney-General, Mr Philip Ruddock, signed a notice under s 16(1) of the Extradition Act, which stated that an extradition request had been received from Ireland in relation to the applicant (the s 16 notice).

13    On 24 March 2005, Ireland submitted further documents to Australia in support of its extradition request, including a statement pursuant to Article V of the Treaty on Extradition between Australia and Ireland signed by Mr Barry Donoghue.

14    By application dated 18 November 2005 the applicant brought a Constitutional challenge in the Federal Court to the exercise of powers by a magistrate under the Extradition Act. On 12 September 2006, Siopis J dismissed the application: Zentai v Republic of Hungary (2006) 153 FCR 104. An appeal to the Full Court of the Federal Court was dismissed on 16 April 2007: Zentai v Republic of Hungary (2007) 157 FCR 585. The applicant was granted special leave to appeal, and the High Court ultimately dismissed the applicant's appeal on 23 April 2008:     O'Donoghue v Ireland (2008) 234 CLR 599.

15    On 3 April 2009, Magistrate G N Calder, sitting in the Western Australian Magistrates Court at Perth, determined, pursuant to s 19(2) of the Extradition Act, that the applicant is an eligible person for surrender to Ireland and issued a warrant ordering that the applicant be committed to prison pursuant to s 19(9) of the Extradition Act (the s 19 decision).

16    On 3 April 2009 the applicant sought review of the s 19 decision pursuant to s 21(1) of the Extradition Act. The application was dismissed by Barker J on 9 June 2009: O'Donoghue v Ireland [2009] FCA 618. His Honour made orders, inter alia, that the applicant was eligible for surrender, within the meaning of s 19(2) of the Extradition Act in relation to the extradition offences and that the order made by the Magistrate pursuant to s 19(9) of the Extradition Act on 3 April 2009 ought to be confirmed by order pursuant to s 21(2)(a) of the Extradition Act.

17    On 19 June 2009 the applicant instituted an appeal from Barker J's judgment to the Full Court of the Federal Court. The applicant's appeal was dismissed by the Full Court of the Federal Court on 22 December 2009: O'Donoghue v Ireland (2009) 263 ALR 392.

18    The applicant sought special leave to appeal from the Full Court's judgment of 22 December 2009. On 17 June 2010 the High Court dismissed the applicant's application for special leave to appeal: O'Donoghue v Ireland [2010] HCASL 152.

19    On or about 22 March 2011, a submission prepared by officers of the Attorney-General’s Department (the Department) was presented to the Minister for his consideration in determining, under s 22(2) of the Extradition Act, whether or not to surrender the applicant to Ireland.

20    On 23 March 2011, the Minister determined under s 22(2) of the Extradition Act that the applicant be surrendered to Ireland and issued a surrender warrant under s 23 of that Act for the applicant's extradition.

The Extradition Act and the Regulations

21    Principal objects of the Extradition Act include:

(a)    to codify the law relating to extradition of persons from Australia to extradition countries: s 3(a) and

(b)    to enable Australia to carry out its obligations under extradition treaties: s 3(c).

22    Part II of the Extradition Act establishes the procedures to be followed where a request for extradition is made to Australia by an extradition country. The Extradition Act provides for four stages in extradition proceedings – commencement, remand, determination by a Magistrate of eligibility for surrender, and executive determination that a person is to be surrendered: Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389. The applicant challenges decisions made at the commencement stage (s 16), determination of eligibility by a Magistrate stage (s 19) and executive determination stage (s 22).

23    Under s 16(1), where the Attorney-General receives an extradition request, the Attorney-General may, in his or her discretion, by notice state that the request has been received. Subsection 16(2) stipulates circumstances in which the Attorney-General shall not give the notice. Each is by reference to the opinion of the Attorney-General as to specified matters.

24    Section 19 provides for the determination of eligibility for surrender by a magistrate, performing an administrative function as persona designata.

25    An order of a magistrate under s 19(9) or s 19(10) may be the subject of a review by the Federal Court or the Supreme Court of a State or Territory: s 21. The reviewing court is required to determine whether the decision of the magistrate was right or wrong and, if wrong, what decision should have been made by the magistrate, thereby determining the rights and liabilities of the parties to the review proceedings and, thus, exercising judicial power: Pasini v United Mexican States (2002) 209 CLR 246 at 255; Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528.

26    Section 22 of the Extradition Act provides for an executive determination as to whether a person, who has been found by a magistrate to be an eligible person, is to be surrendered. Subsection 22(3) provides in paras (a) to (f) a series of requirements which must be met if the eligible person is to be surrendered and includes a general discretion in para (f).

27    Under s 11, regulations under the Extradition Act may state that the Extradition Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country. Here, regulations have been made: Extradition (Ireland) Regulations 1989. Regulation 5 provides that the Extradition Act applies subject to the Treaty on Extradition between Australia and Ireland done on 2 September 1985 (the Treaty) set out in the Schedule to the Regulations.

28    The decisions of the Attorney-General under ss 16 and 22 are not subject to review under the Extradition Act. Decisions under the Extradition Act are also excluded from review under the Administrative Decisions (Judicial Review) Act 1977 (Cth): see Schedule 1, para (r) to that Act. The decisions are, however, subject to the constitutional writs under s 75(v) of the Commonwealth Constitution and s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act). Those writs lie for jurisdictional error.

The section 22 decision

29    The Extradition Act does not require the Minister to give reasons for a determination decision made under s 22. There is no other statutory obligation to give reasons.

30    The submission dated 21 March 2011, with supporting attachments, prepared by officers of the Department for the consideration of the Minister (the s 22 submission) is in evidence.

31    The s 22 submission does not constitute a statement of reasons: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [40]. It does, however, set out for the Minister’s consideration the pre-conditions for surrender and the mandatory and discretionary grounds for refusing surrender under s 22 of the Extradition Act and the Treaty. The representations made on behalf of the applicant were attached and addressed. Attachment B summarises the representations made on behalf of the applicant and the Department’s response to the representations relevant to pre-conditions for surrender, grounds for refusal and the exercise of the Minister’s discretion. The s 22 submission includes the Department’s advice that it was open to the Minister to be satisfied that the requirements of s 22 are met. The Minister’s determination is recorded on the front page of the s 22 submission.

32    The Court may have regard to the s 22 submission in assessing those grounds of review in respect of which the document is relevant. The Court may, in particular, have regard to the s 22 submission in determining the material before the Minister, and in assessing whether the material on which the Minister acted may support the inference that he had applied the wrong test or was not ‘‘in reality’’ satisfied of the requisite matters: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme at [16] and [20]: see also Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582 at [59]-[61]; Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 at [54] per Branson J. As to the s 22 submission:

(a)    it should be read as a whole and individual parts should not be taken out of context: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme at [28];

(b)    an error in any advice given to the respondent does not itself constitute reviewable error or render the decision invalid: McHugh Holdings Pty Ltd v Director General Communities NSW [2009] NSWSC 1359 at [41]; Oates v Attorney-General (Cth) (2001) 181 ALR 559 at [133].

Sections 16 & 22 of the Extradition Act

33    The decision making powers under ss 16 and 22 of the Extradition Act include requirements that the relevant decision-maker is “of the opinion” or “satisfied” about certain matters. Such provisions are construed as requiring the decision-maker to reasonably form the opinion or be so satisfied. The question on judicial review is whether the decision-maker could have formed that opinion or attained that satisfaction reasonably, in the sense explained by the High Court in Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 at [73] as well as the numerous authorities cited there.

The application

34    By his application dated 25 March 2011 the applicant seeks an order for review of the s 22 decision and further seeks the grant of a writ of certiorari and other relief in relation to the s 16 notice and the s 19 warrant. The applicant also seeks certain interlocutory relief.

35    The application is supported by affidavits of Paige Regan Maloney sworn 25 March and 12 May 2011. The respondents read an affidavit sworn by Peter John Corbould sworn 12 April 2011 and an affidavit by Shannon Eileen Cuthbertson sworn on 6 June 2011.

36    The applicant filed and served an amended application on 12 May 2011. The applicant's grounds for seeking an order of review in respect of the s 22 decision made on 23 March 2011 are that:

1.    the extradition process had not been validly commenced; and

2.    the Respondent failed to take into account relevant considerations.

37    The applicant's ground for seeking certiorari in relation to the s 16 notice issued by the then Attorney-General on 5 January 2005 is that:

… the notice purported to be given by the Attorney-General on 5 January 2005 that an extradition request had been received from Ireland in relation to the Applicant was not a valid notice pursuant to subsection 16(1) of the Extradition Act 1988 (Cth) because a valid extradition request had not been received from the Republic of Ireland on 5 January 2005.

38    On 12 May 2011 the applicant also filed and served a document entitled "Grounds of Review and Other Relief". That document set out nine "Specific Grounds". The applicant's written Outline of Submissions dated 27 May 2011 addresses each of these nine grounds and 2 other proposed grounds (4A and 4B).

39    Despite the concessions made by Senior Counsel for the applicant I propose to deal with each of the applicant’s grounds for review.

Ground 1 - The then Attorney-General made a jurisdictional and procedural error in deciding to issue, and issuing, the section 16 notice

40    The applicant advances two reasons for contending that the s 16 notice was invalidly issued. First, he asserts that the then request for extradition came from Ireland on 24 March 2005, and that consequently the Attorney-General could not have been satisfied that a request for extradition had been made prior to issuing the s 16 notice. Second, the applicant submits that he was not an "extraditable person" at the time the decision to issue the s 16 notice was made, and the issuing of the s 16 notice was therefore beyond the Attorney-General’s statutory power.

41    The applicant's contention that the actual request for extradition from Ireland came on 24 March 2005 appears to be based on the statement pursuant to Article V of the Treaty signed by Mr Barry Donoghue.

42    The expression "extradition request" is defined in s 5 of the Extradition Act as follows:

extradition request means a request in writing by an extradition country for the surrender of a person to the country.

43    A request in writing by Ireland for the surrender of the applicant to Ireland was received by Australia on or about 26 May 2004.

44    The statement pursuant to Article V of the Treaty signed by Mr Barry Donoghue dated 24 March 2005 is clearly on its face not a request for extradition, but is a document in support of Ireland’s request for extradition: O'Donoghue v Minister for Immigration and Citizenship [2010] FCA 1486 at [26].

45    Moreover, the submission that the s 16 notice was invalid because an extradition request had not been received from Ireland before the notice was issued was raised by the applicant in his bail application in other proceedings in this Court and was rejected by McKerracher J: O'Donoghue v Minister for Immigration and Citizenship [2010] FCA 1486 at [26]-[31].

46    I am of the opinion that the applicant’s attempt, under this ground, to revisit the same contention as to the invalidity of the s 16 notice is an abuse of process when that issue was disposed of in those other proceedings, and there being no new evidence: Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314 per Carr and Sundberg JJ at 323.

47    Nor is there any substance in the applicant's claim that the s 16 notice was invalid because he was not an "extraditable person". This submission depends for its force upon the success of the former submission. By s 6 of the Extradition Act, a person is an extraditable person if the requirements of paras (a), (b) and (c) are satisfied. The applicant does not contend that any of those paragraphs were not satisfied at the time the then Attorney-General issued the s 16 notice. Rather, the applicant submits that he was not an extraditable person "because a valid extradition request had not been made and the Attorney-General could not reasonably be of the opinion that there was not an extradition objection in relation to any extradition offence."

48    Paragraph 16(2)(b) of the Extradition Act provides that the Attorney-General shall not give a notice under that section "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."

49    There is no evidence that the then Attorney-General was of the opinion that there was an extradition objection in relation to all of the extradition offences for which the applicant's surrender was sought. Nor has the applicant adduced any evidence to show that there was, as at 5 January 2005, evidence or material before the then Attorney-General which meant that as a matter of law he was bound to form the opinion that there was an extradition objection in relation to all of the extradition offences for which the applicant's surrender was sought.

50    Further, and in any event, it is an abuse of process for the applicant to now bring a challenge to the s 16 notice. Such an application is inconsistent with the result of the adjudication, adverse to the applicant, in the earlier s 21 proceedings to which I have referred: Brock v Minister for Home Affairs (2008) 170 FCR 434 per Lindgren and Tracey JJ at [59].

51    The application challenging the s 16 notice is also futile as "the work to be done by the issue of a Notice of Receipt of Extradition Request under s 16 is spent once the s 19 stage in the process is reached": Brock per Lindgren and Tracey JJ at [77]; Vasiljkovic v Honourable Brendan O'Connor [2010] FCA 1246 at [80].

52    A Magistrate exercising functions under s 19 of the Extradition Act proceeds on the basis that the person whose surrender is sought is an 'extraditable person': Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 539 (Brennan CJ, Dawson and McHugh JJ) and 541 (Toohey J). In Brock, Lindgren and Tracey JJ stated, at [77], that

the magistrate was required to satisfy herself independently that the dual criminality requirement was met, and was not required to review the Minister's having been previously satisfied that it was met for s 16 purposes.

53    Ground 1, for all these reasons, is not made out.

Ground 2 - The Magistrate's determination on 3 April 2009 that the applicant was an "eligible person", and the order committing the applicant to imprisonment, were beyond jurisdiction, unlawful and void

54    The applicant's submissions in support of Ground 2 are based upon the contention encompassed by Ground 1 that the s 16 notice was not a valid notice. As Ground 1 has failed, so, consequentially, must Ground 2.

55    Further and in any event, it is not now open to the applicant to challenge the s 19 decision in these proceedings. As I earlier explained the s 19 decision was reviewed by Barker J who made an order on 9 June 2009 confirming the decision pursuant to s 21(2)(a) of the Extradition Act. An appeal from Barker J’s decision was dismissed by the Full Court and an application for special leave to appeal was refused by the High Court on 17 June 2010. The applicant has exhausted his appeal rights in relation to the s 19 decision and his challenge to that decision is an abuse of process.

Ground 3 – The Minister made a jurisdictional error in finding that the applicant was an “eligible person”

56    The applicant submitted that the error set out under this Ground means that the Minister's decision and order to surrender the applicant for extradition under s 22 of the Extradition Act were beyond jurisdiction and void.

57    The applicant relies upon his contentions that the s 16 notice was invalid and that as a result the finding and order of the Magistrate were unlawful and void in support of Ground 3. For the same reasons that Grounds 1 and 2 are not made out, Ground 3 must also fail.

58    Further, the Minister, in making his determination under s 22 of the Extradition Act, was not required to address whether the applicant was an “eligible person” within the meaning of s 19(2) of the Extradition Act or an “extraditable person” within the meaning of s 6.

59    Section 22 makes no reference to a notice under s 16 of the Extradition Act, or a person “eligible for surrender” under s 19(2) of the Extradition Act. The s 22 decision of the Minister was conditioned upon the applicant being an “eligible person” as defined in s 22(1) and upon there being a determination under s 19, or on appeal under s 21, that the applicant was a person eligible for surrender in relation to specified extradition offences.

60    The Minister had only to satisfy himself that the applicant was an “eligible person” within the meaning of s 22(1) before embarking upon the determination referred to in s 22(2). The Minister could not but be satisfied that the applicant was an “eligible person” as defined in light of the s 19 decision of the Magistrate which had been confirmed on appeal.

61    Although the s 19 decision was an administrative act, the orders of the Federal Court under s 21 were exercises of judicial power: Pasini v United Mexican States (2002) 209 CLR 246 at [18]. The fact that s 22 of the Extradition Act confers a discretion does not detract from the finality of a determination made by the Federal Court that the applicant is “eligible for surrender”: Pasini v United Mexican States at [69].

Ground 4 - Minister's failure to consider relevant circumstances in the exercise of his discretion

62    The applicant contends that the Minister erred in law "in failing to give proper, realistic and genuine consideration" to whether, in the exercise of his discretion he should refuse extradition having regard to the provisions of the Extradition Act and the Treaty; the political nature and surrounding circumstances of the request for extradition; the procedures which had previously occurred in the extradition process; and all other relevant factors. The language of “proper, genuine and realistic consideration” was considered by the New South Wales Court of Appeal in Swift v SAS Trustee Corporation [2010] NSWCA 182. As Basten JA (with whom Allsop P agreed) stated at [45]:

[t]aken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.

His Honour explained further:

If it is demonstrated in a particular case that an administrative decision-maker has failed to address a claim properly made, or has failed to identify the statutory power under which the claim should properly be disposed of, there will be a constructive failure to exercise jurisdiction. … Where a decision-maker does address the claim, by reference to the correct power, asking whether he or she did so “properly” or “genuinely”, or “realistically” may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process.

63    The applicant contends that the Minister fettered the exercise of his discretion and disabled himself from properly and genuinely considering its exercise and the factors relevant to it:

(a)    by relying solely on the submissions from the Department, the decisions made in previous court proceedings and purportedly on the ground of a long-standing "policy" that Australia will not refuse extradition; and

(b)    by giving undue precedence to Australia’s obligation under the Treaty to respond to Ireland’s request without having a balanced or any regard to Australia's other obligations and responsibilities under the Treaty to the applicant.

64    I reject these contentions.

65    The applicant made extensive representations to the Minister on 16 July 2010 which were accompanied by approximately 130 pages of supporting material. The submissions and material were placed before the Minister as Attachment D to the s 22 submission. Further, the applicant's representations were summarised in great detail in the s 22 submission. There is therefore no basis for the allegation that the Minister relied solely on the Department's submissions, the decisions in previous court proceedings, and a policy that Australia will not refuse extradition.

66    The applicant in his written submissions sets out various "Particulars of political, religious, nationality and related circumstances". These refer to evidence of violence and prejudice against persons of the same political opinion, nationality and religion which he says may be inferred from media attention and publicised events. These and related material were set out in great detail in the applicant’s submissions to the Minister and which are to be found in the affidavit of Peter Corbould sworn 12 April 2011.

67    A particular example relied upon is found in a letter from AC Pendred & Co to Bayly & O'Brien, dated 20 March 2005, which relevantly states:

"It is very conceivable that the authorities In Northern Ireland are replete with very professional persons of power who would consider the business activities of Mr O'Donoghue as politically threatening since it attracted "Catholic Southern Republicans" to buy property in Northern Ireland and become registered voters there thus inevitably tripping the balance of power In Northern Ireland, The arrest postdates the arrests in the Republic of Ireland,

In this sense the charges could very well be politically motivated and/or religiously motivated and if so, Vincent should have the opportunity of claiming asylum or seeking an exemption from extradition on the basis of political motivation and collusion. This, however, would be very difficult to prove but it is not beyond the realms of credibility....

"Proof of political collusion and persecution Is very difficult to obtain and this Is why, in asylum cases, the burden of proof is much less onerous and set on likelihood, that is, more likely than not, In such a case, the asylum seeker is entitled to the benefit of the doubt. Since Extradition is not a criminal process could we equate the burden of proof in such cases with the burden of proof In asylum issues and are of a political, religious nature, given the political and religious historical background In both Irish jurisdictions...

"Vincent O'Donoghue was selling homes in a Catholic area to Catholic republicans in the Northern State rules by the Monarchy of the United Kingdom. The electoral balance Is sensitive there and terrifies the Northern Unionists who control the civil services, police and all Government services. Who could blame such a terrified administration for seeking to eliminate Vincent O'Donoghue? They did it incompletely end they face exposure. It seems from their point of view that the need to discredit Vincent O'Donoghue is overwhelming and essential...

"Six and one half years delay is outrageous and begs serious judicial scrutiny as to whether the Commonwealth of Australia is being used unscrupulously to undermine Vincent O'Donoghue's fundamental rights."

68    All of these matters formed part of the submission provided to the Minister for the purposes of his s 22 determination.

69    The applicant concludes his submissions in relation to Ground 4 by stating that after reading the documentation which he had submitted, "no reasonable Minister could have found that there was no "extradition objection", that Article III of the Treaty was not invoked, and that there was not a real risk that the applicant's fundamental human rights would be violated by the requesting State". The applicant contends that it could therefore be inferred that the Minister had “failed to account for these circumstances” and that it followed that the Minister took into account irrelevant considerations, namely, the long-standing "policy" that the Minister would not refuse extradition in making the decision to surrender the applicant under s 22 of the Extradition Act.

70    The requirement under s 22(3)(a) of the Extradition Act that the Attorney-General be satisfied that there is no extradition objection in relation to the offence, the applicant's representations concerning extradition objections and Ireland's responses are dealt with comprehensively in the s 22 submission at [13] to [74]. The s 22 submission concluded, at [75], that the Minister “may be satisfied that there is no extradition objection in respect of the offences for which Ireland has sought [the applicant's] extradition.”

71    The applicant then submits, alternatively, that the Minister's decision not to refuse extradition was one which no Minister, acting reasonably and giving consideration to those facts could, in the proper exercise of her or his discretion, make.

72    The Department's advice to the Minister concerning extradition objections in relation to the extradition offences was clearly open on the available material, including the applicant's representations and his supporting material.

73    The applicant's contention that after reading the documentation which he submitted, no reasonable Minister could have found that there was no extradition objection is without substance. Ground 4 fails.

Proposed Ground 4A - Extradition Act s 7(c) - The applicant may be prejudiced at his trial by reason of his nationality, religion and political opinions

74    This ground falls to be considered in conjunction with Ground 4.

75    There is again no basis for the applicant's contention that he has a valid extradition objection under s 7(c) of the Extradition Act that was not properly considered by the Minister. The applicant relies upon the statement in the s 22 submission that “(t)he Department does not possess any information suggesting that on surrender to Ireland [the applicant] will be prejudiced at trial, punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.”

76    The s 22 submission took into account the applicant's representations in relation to possible prejudice at his trial in terms of the extradition objection set out at s 7(c) of the Extradition Act. Notwithstanding the representations made by the applicant and the material he provided, the Department was entitled to express the view at [66] of the s 22 submission that it did not possess any information suggesting that the applicant would be prejudiced at trial for any of the reasons set out at s 7(c) of the Extradition Act. It was open to the Minister, who had all the applicant’s representations before him to similarly conclude that he was not satisfied that there was an extradition objection under s 7(c) of the Extradition Act. The Minister was entitled to reject the applicant’s contentions to the contrary as being otherwise unsupported. The Minister, on the other hand, may have accepted the applicant’s submissions in this respect despite the Departmental comment. As a fact the Minister rejected the applicant’s submissions.

77    There is, accordingly, no basis for the applicant's contention that the Minister "failed to give a fair, properly reasoned and informed consideration" to his claim that any current proceedings against him might be prejudicially affected by the political bias against Catholic lawyers involved in the property market. The applicant has not demonstrated any jurisdictional error by the Minister in his consideration of whether there is any extradition objection in terms of s 7(c) of the Extradition Act.

Proposed Ground 4B - Nationality of applicant's family as a basis for discretionary refusal

78    This ground, the applicant submits should also be considered in conjunction with Ground 4. The applicant submits that the Minister erred in law, in failing to give proper, realistic and genuine consideration to whether, in the exercise of the discretion conferred by the Act and the Treaty, he should refuse extradition, having regard to the fact that the applicant's family are nationals of Australia, taken together with the time spent in Australia with his young, dependant family, the birth of his children in Australia and other relevant factors. Alternatively, he contends that the Minister’s decision not to refuse extradition was one which no Minister, acting reasonably and giving consideration to those facts could, in the proper exercise of his discretion, make.

79    The applicant says that it is not disputed that three of the applicant's young children were born in Australia and are Australian nationals and that the applicant's wife and first born child have obtained residency in Australia. He submits that this information has not been satisfactorily answered, addressed, refuted and discounted by the Department in Departmental Attachment B, nor impliedly by the Minister and that if the Minister did not take this information into account as relevant facts then the Minister erred in law.

80    The applicant then submits that it appears that the Minister foreclosed consideration of whether to exercise his discretion to refuse, on the basis of a so-called "long standing policy" that Australia will not refuse extradition, which was prior to the determination of Zentai, and failed to have regard to the applicant's personal circumstances as a reason for refusal.

81    Thus, the applicant argues, the Minister thereby fettered the exercise of his discretion and disabled himself from properly and genuinely considering its exercise and the factors relevant to it and that by not considering this factor properly on its merits, he also compounded his failure by apparently adopting the advice of the Department, that the principle of comity required Australia to give paramount consideration, when determining those discretionary grounds, to the clear objective of the law and Treaty.

82    This asserted failure, by not giving individual consideration to the special and unique features of the applicant's case resulted, says the applicant, in the Minister failing to have a balanced or any due regard to Australia's other obligations and responsibilities under the Treaty, to its own nationals. This, the applicant says, includes not taking administrative action that, given his personal circumstances and family, may cause any unnecessary or disproportionate distress and disruption that his extradition would occasion if he were removed from Australia.

83    The applicant submits that all of these failures to have regard to these matters gives rise to jurisdictional error and that consequently, the Minister’s determination under s 22 is without proper legal foundation and void.

84    In his representations to the Minister, the applicant stated that "the circumstances of this case mean that if I were returned to Ireland it would result in harsh, unjust and unfair consequences occurring to myself and my family". This claim was referred to in the s 22 submission, which specifically noted that three of the applicant's children were born in Australia.

85    In his representations to the Minister, the applicant made no claim that his three youngest children were Australian nationals and that his wife and eldest child had obtained residency. There is no evidence before the Court of such matters but, in any event, there can be no jurisdictional error by the Minister in not taking into account information which was not available to him.

86    I reject the applicant’s submission that Australia has obligations and responsibilities under the Treaty to its own nationals. The Treaty is an agreement between two nation States: Australia and Ireland, which have obligations to each other under its terms. Neither the applicant nor any members of his family have any rights under the Treaty.

87    The applicant also raised a new but related submission. It was never put to the Minister, nor was it found in the applicant’s written submissions. It was raised without notice and for the first time, at the hearing of the application. This submission asserts that when the Commonwealth is making an executive decision it is a relevant consideration for it to take into account international covenants and in this case the covenant described by Senior Counsel as that concerning the rights of children. Reliance was placed on the decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273. The applicant contends that the Minister was required to consider Australia’s obligations under the relevant treaty with Ireland but also its “broader human rights obligations, for instance, under the rights of the child”. It would, he contends, be harsh, unjust and unfair for these matters not to be taken into account.

88    It is in my view quite inappropriate to raise an argument of this kind without notice or particularly on the hearing of the application. Beyond a mere reference, in effect, to the United Nations Convention on the Rights of the Child there is no specificity as to which article(s) should have been but were not considered by the Minister. There was no motion to further amend the grounds for review in this respect. The submissions are not supported by evidence nor was any evidence before the Minister.

89    In Teoh it was held that the ratification of this Convention by Australia gave rise to a legitimate expectation that the Minister would act in conformity with it and treat the best interests of the applicant’s children as a primary consideration.

90    The applicant had applied for a permanent entry permit and whilst this was pending he was convicted in Australia of drug offences and sentenced to imprisonment. His application was later refused, it being determined that by reason of his conviction he did not satisfy the “good character” criteria. The applicant and his wife, between them, were parents to seven children.

91    The appeal was allowed on the basis that the applicant had been denied procedural fairness in that he had not been afforded the opportunity to present a case against a decision inconsistent with the legitimate expectation.

92    This is not an analogue for the present case. I reject this submission.

93    There is no substance to the applicant's claim that the Minister failed to give consideration to the circumstances of the applicant's family in exercising his discretion as to whether or not the applicant should be surrendered to Ireland. The applicant has not demonstrated any jurisdictional error by the Minister in relation to his consideration of the applicant's family's circumstances.

Ground 5 – The Treaty

94    The applicant contends that the Minister erred in law and misdirected himself on a fundamental matter regarding the terms of Article III paragraphs 1(a) and (b) of the Treaty, failed to take into account relevant considerations which he was bound to consider, and thereby failed to properly exercise his jurisdiction under s 22 of the Extradition Act.

95    It is common cause that pursuant to ss 11(1), 11(1C) and 22(3)(e) of the Extradition Act, and regulation 5 of the Extradition (Ireland) Regulations 1989, the Minister was required to take into account the matters set out in paras 1(a) and (b) of Article III of the Treaty.

96    Article III relevantly provides that extradition shall not be granted (1(a)) if the offence for which extradition is requested is a political offence or an offence connected with a political offence or (1(b)) if there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion or that his position may be prejudiced for any of those reasons.

97    The applicant submits that the circumstances set out in paras 1(a) and (b) of Article III of the Treaty exist, and that the Minister was misled by the s 22 submission and therefore failed to consider these circumstances as relevant considerations.

98    The applicant submits that the Minister was mislead by the Department in that Departmental Attachment B essentially dismisses the possibility of the circumstances and failed to give the circumstances adequate weight. The brief address in this regard by the Department presents, on the applicant’s submission, a one-sided opinion to the Minister and therefore the Minister failed to consider these circumstances as relevant considerations.

99    This ground in substance seeks an impermissible merits review of the Minister's decision. The applicant's detailed representations in relation to these matters were all set out in the s 22 submission.

100    There is no basis for the applicant's assertion that the Minister failed to have regard to the matters set out in paras 1(a) and (b) of Article III of the Treaty. This ground fails.

Ground 6 – The Minister committed jurisdictional error by failing to take into account relevant considerations in considering whether it would be oppressive and incompatible with humanitarian considerations to surrender the applicant for extradition

101    The applicant submits that the Minister erred in law, and committed jurisdictional error, by failing to take into account relevant considerations when considering whether, in accordance with subsections 22(2) and (3) of the Extradition Act, particularly 22(3)(f), it would be oppressive and incompatible with humanitarian considerations to surrender the applicant for extradition, given the length of time he and his family have been resident in Australia, the applicant’s health issues, the length of time since the offences were alleged to have been committed, and consequent difficulties which the applicant may have in presenting evidence in his defence and the lack of relative seriousness of the alleged offences when weighed against the time which the applicant has been in custody.

102    There is no evidence that the Minister failed to take these matters into account. In any event, they are not matters which, even if established by evidence, demonstrate any jurisdictional error by the Minister. This ground invites an impermissible merits review.

103    The applicant further contends that the Minister failed to give real and genuine consideration to whether, there are relatively more appropriate alternatives, which would give full force and effect to humanitarian considerations, to surrendering him for extradition to Ireland, such as permitting the Irish authorities to conduct their enquiries in Australia to establish whether there is presently a strong case against the applicant and whether he has a reasonable defence to the allegations or will have a fair opportunity to present a defence to charges, given the time which has elapsed since their alleged commission.

104    As a result, the applicant submits that the Minister failed to take into account the fact that the applicant is entitled to the presumption of innocence, and that the relevant interests of the international community could, proportionately and appropriately, be satisfied by such alternatives.

105    There is simply no basis for contending that the Minister disregarded the presumption of innocence. The principal objects of the Extradition Act do not require the guilt or innocence of the person of an offence and whose extradition is sought to be determined (s 3(a)).

106    The Minister is not required to consider such matters and failure to do so does not amount to jurisdictional error.

107    The applicant submits that the "central submission" on this ground is that the Minister failed to satisfy himself of the capacity of Ireland, particularly the police forces involved, to provide procedures consistent with Australia's and Ireland's international obligations under Article 14 of the International Covenant on Civil and Political Rights with its two protocols and other relevant instruments, to ensure a fair trial if the police and Director of Public Prosecutions of Ireland were to charge and prosecute the applicant for the specified offence.

108    The applicant further relies on his earlier submissions in relation to the political circumstances of the request for extradition from Ireland, namely that there is evidence to suggest that the police of Northern and Southern Ireland are targeting the applicant because of his role in the property market, and the delay and media attention received in Ireland regarding these transactions and the potential embarrassment which a failure to extradite the applicant may produce.

109    The s 22 submission to the Minister noted that Ireland is a party to several treaties which oblige it to ensure a fair trial, including the International Covenant on Civil and Political Rights (Article 14). It was further noted in the s 22 submission that "[t]hese treaties also oblige Ireland to afford certain rights to persons who have been arrested and/or deprived of their liberty".

110    The applicant's assertion that there is objective evidence that he may not be afforded a fair trial has no basis in fact. The complainants in this matter, Mr Henderson and Mr Redmond, made unsolicited complaints to the Irish Police (the Garda) and the Director of Public Prosecutions directed the prosecution of the applicant on the basis of the complaints made by these men. Further, the Director of Public Prosecutions is independent in the exercise of his functions by virtue of s 2(5) of the Prosecution of Offences Act 1974 (Ireland).

111    Contrary to the applicant’s submissions there was no legal obligation on the Minister to require the Irish Government to satisfy him that the applicant will not be subjected to an unfair trial, or to make further substantive inquiries about the following matters:

•    how long it is likely to be before Irish prosecution authorities complete investigation procedures;

•    whether there will be further delays in deciding when to prosecute the applicant;

•    whether the non-availability of evidence due to the passage of time will affect his defence; and

•    similar issues.

112    As I have said, Ireland has an independent prosecuting authority and an independent judiciary and, in any event, the Minister was under no duty to make inquiries: Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [26]-[30] and Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [20]-[25].

113    There was no jurisdictional error by the Minister in failing to make further inquiries of the kind postulated by the applicant. This ground fails.

Ground 7 – Speciality Assurance

114    The applicant submits that the Minister made an error of law and fact and misdirected himself on a fundamental matter regarding whether the applicant was capable of being surrendered under the Act, and made a jurisdictional error, in terms of ss 22(3)(d) and 22(4), in that no speciality assurance has been given by Ireland in relation to the applicant, nor shall Ireland be taken to have given a speciality assurance in relation to the applicant.

115    He contends, somewhat obscurely, that no provision of the law of Ireland, or a provision of an extradition treaty in relation to Ireland, or an undertaking given by Ireland to Australia exists in relation to him and that he, after being surrendered to Ireland, will not, unless he has left or had the opportunity of leaving Ireland; be detained or tried in Ireland for any offence that is alleged to have been committed, or was committed, before his surrender other than the offences listed in subsections 22(4)(d)(i)-(iii) of the Act. Accordingly, he submits the Minister's decision was ultra vires in relation to s 22(2) and s 22(3)(d) and should be quashed.

116    It is common ground that, pursuant to s 22(3)(d) of the Extradition Act, Ireland must give a speciality assurance in relation to the applicant.

117    Under s 22(4)(b) of the Extradition Act, Ireland is taken to have given a speciality assurance in relation to the applicant if, by virtue of a provision in the Treaty, the applicant, after being surrendered to Ireland, will not, unless he has left or had the opportunity of leaving Ireland:

(d)    be detained or tried in the country for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender other than:

(i)    any surrender offence;

       (ii)    any offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the eligible person could be convicted on proof of the conduct constituting any surrender offence;

(iii)    any extradition offence in relation to the country (not being an offence for which the country sought the surrender of the eligible person in proceedings under section 19) in respect of which the Attorney-General consents to the eligible person being so detained or tried; or

(e)    be detained in the country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender to the first-mentioned country, other than any offence in respect of which the Attorney-General consents to the eligible person being so detained and surrendered.

118    Articles XII and XIII of the Treaty contain rules of speciality which, in my opinion, comply with the requirements of the Extradition Act, s 22(4)(d) and will apply in respect of the applicant’s surrender to Ireland.

119    If, contrary to the Minister’s submission, the rules of speciality in the Treaty do not meet the requirements of the Extradition Act, it would be futile to remit the matter to the Minister for reconsideration as Ireland has, in any event, advised that it will provide a speciality assurance in the specific terms of s 22(4) of the Extradition Act. I would not accordingly, on that basis, exercise my discretion in favour of such a remittal.

Ground 8 – The Minister’s decision is flawed by illogical and irrational conclusions and is manifestly unreasonable

120    The applicant submits that the Minister’s decision proceeds on so many misapprehensions of law and inaccuracies of fact derived from the comments and opinions expressed in Attachment B, and his decision is so unreasonable, that his exercise of discretion should be found to have miscarried and that he consequently exceeded his jurisdiction under s 22 of the Act.

121    The applicant submits that, in making his decision, the Minister proceeded to take into account a mistaken notion of comity and wrong premises regarding significant facts such as those regarding the applicant's migration status and proceedings before the courts, while omitting to have regard to other relevant propositions and distinctions, such as the applicant's dependants, the quasi-criminal nature and relative lack of seriousness of the alleged offences, and the surrounding political circumstances of the type of the alleged offences and the request and the media interest and allegations of police corruption in Ireland. He submits that the logical incoherence of the total reasoning process constitutes a failure by the Minister to exercise his jurisdiction under s 22 in a lawful and proper manner.

122    This inference of manifest unreasonableness, the applicant contends, is supported by the following statement made in the Department's covering letter to the Minister and which the applicant says are absolute and totally unqualified, negative assertions provided by the Department to the Minister for his consideration prior to making his Determination.

•    The Department considers that it is open to you to be satisfied that the requirements of s 22 for surrendering Mr O'Donoghue to Ireland are met in this case. The Department is not aware of any basis upon which you should decline to exercise your general discretion under the Act to determine that O'Donoghue is to be surrendered to Ireland for extradition offences.

•    I recommend that:

(i)    you read the advice at Attachment B and determine under subsection 22(2) of the Act that Vincent Thomas O'Donoghue be surrendered to Ireland …

123    As to this last statement the applicant points out that the Minister was not recommended to read the applicant's submissions or consider any further circumstances. Inferentially, he then submits, the Minister did not consider the applicant’s submissions or any other circumstances. This is quite unmeritorious. The Department was entitled to express its views. That it did so in a particular way or with a particular emphasis does not give rise to an inference that the Minister ignored the content of the applicant’s submissions.

124    Moreover the scope for a challenge based on Wednesbury unreasonableness is extremely limited. Success on this ground is exceptional: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [100].

125    An unreasonable decision in the Wednesbury sense must be one “verging on an absurdity”: Aronson, Dyer & Groves Judicial Review of Administrative Action (2009, 4th edition, Lawbook Co) at para [6.215], pp 374, 376; Timar v Minister for Justice and Customs (2001) 113 FCR 32 at [33]-[36].

126    As French J said in Hempel v Attorney-General (Cth) (1987) 77 ALR 641 at 658 (lines 25 – 30):

His discretion will, no doubt, be exercised with full regard to Australia’s treaty obligations with respect to extradition. Having regard to that obligation there may be few cases in which he would decline to surrender a fugitive who is liable to surrender, in respect of whom no prohibition against extradition operates and who does not attract the benefit of discretionary provisions relating to Australian nationals.

127    Here, there was no prohibition against the applicant’s surrender. These criticisms of the s 22 decision are unfounded. In any event, it was clearly open to the Minister, on the material before him, to determine that the applicant be surrendered to Ireland. This ground fails.

Ground 9 – Failure to give reasons

128    The applicant submits that the Minister erred in law, and failed to comply with a fundamental legal requirement, by refusing to provide to the applicant a statement of his relevant findings and the reasons for his determination under s 22 of the Act, in consequence of which his determination is a nullity and of no legal effect.

129    The applicant requested a statement of reasons for the making of the Minister's decision under s 22 of the Extradition Act. The Minister declined that request.

130    The applicant contends for an implied obligation on the part of the Minister to provide reasons for his decision based on the operation of s 39B of the Judiciary Act.

131    The applicant submits that the provision of reasons is necessary in order to effectuate judicial review of the Minister’s decision under s 22 of the Extradition Act and thereby to permit the exercise of the Court’s jurisdiction under s 39B of the Judiciary Act; otherwise, a reviewing court will not be able to judge whether the Minister’s actions are lawful or not.

132    An argument to the same effect was correctly rejected by McKerracher J in Zentai v Honourable Brendan O’Connor (No 3) (2010) 187 FCR 495. His Honour cited the observation of Dixon J (as he then was) in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360:

His decision, it is true, is not unexaminable. … Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law. [emphasis added]

133    McKerracher J concluded, citing Gibbs CJ in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 662 that:

There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons. [emphasis added]

134    For the purpose of drawing an inference that an officer of the Commonwealth has applied the wrong test, Gummow A-CJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 drew a distinction between legislative regimes that do not require reasons to be given (citing Osmond) (at [34]), and provisions such as s 430 of the Migration Act 1958 (Cth) that do (at [35]).

135    The statutory implication contended for by the applicant is not necessary in order to effectuate judicial review of the s 22 decision of the Minister. This is clear from the observation of Drummond J in Foster v Minister for Customs & Justice (1999) 164 ALR 357 at [66] in relation to the decision to issue a warrant under s 23 of the Extradition Act authorising the applicant’s surrender to the extradition country:

[66]    The minister has not given any reasons for her decision of 30 March 1999. She is not obliged to do so. But as Watkins LJ pointed out in R v Secretary of State for the Home Department; Ex parte Sinclair [1992] Imm AR 293 at 301, while the failure to give reasons where there is no obligation to do that does not of itself attract judicial review of a minister’s surrender decision, the absence of reasons does not necessarily leave the decision immune from such a challenge. A failure to give reasons when the evidence shows the advice given to the minister did not advert to a relevant consideration leaves uncontradicted the inference that that consideration was overlooked when the decision was made. [emphasis added]

136    Accordingly, in the absence of the provision of reasons, the satisfaction of the Minister is not beyond scrutiny. That satisfaction is inferred objectively from the materials placed before the Minister relevant to the decision eventually made: Foster v Minister for Customs & Justice (2000) 200 CLR 442 at [100].

137    Furthermore, as held in Zentai (No 3) at [385]-[386] the statutory implication contended for by the applicant is not supported by the words of s 22 of the Extradition Act, nor is it consistent with the exclusion of decisions under the Extradition Act from the application of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Sch 1 para (r)), including the obligation to furnish reasons for a decision upon request pursuant to s 13(2) of that Act.

138    In any event, even if there were a statutory obligation to provide reasons, and in my opinion there is not, the failure to discharge that obligation does not of itself vitiate the s 22 decision of the Minister for jurisdictional error: Vanstone v Clark (2005) 147 FCR 299 at [243] per Weinberg J, (with whom Black CJ agreed); see also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [41]-[48] per Gleeson CJ, Gummow and Heydon JJ; [55]-[56] per McHugh J. However, such a duty to provide reasons may be susceptible to enforcement by an order for mandamus.

139    This ground fails.

Bail

140    Whilst the applicant’s amended application for review contains a claim for interlocutory relief, including that he be released on bail, this was not the subject of any written or oral submissions by the applicant at the first hearing although the applicant alluded to it during the hearing on 7 July 2011 when he applied in person for an adjournment. The claim for bail was accordingly without notice to the Minister or the Court and I declined to hear any application at that time.

Conclusion

141    The application for all these reasons should be dismissed with costs.

Associate:

Dated:    29 August 2011