FEDERAL COURT OF AUSTRALIA

Rivas v Republic of Chile [2019] FCA 1940

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application to review the bail decision delivered on 27 June 2019 is dismissed.

2.    The applicant is to pay the costs of the first respondent to be agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The first respondent, the Republic of Chile, has sought, pursuant to an extradition request presented to Australia, the extradition of the applicant to face prosecution in Chile for 7 counts of aggravated kidnapping, contrary to Article 141 No. 3 of the Criminal Code (Chile).

2    The following decisions have been made in the extradition process to date: first, the decision of the Commonwealth Attorney-General, made on 26 October 2018, to issue a notice of receipt of the Extradition Request, pursuant to s 16 of the Extradition Act 1988 (Cth) (Extradition Act) (s 16 decision); and second, the decision of the second respondent, a magistrate of the Australian Capital Territory, made on 5 December 2018, to issue an extradition arrest warrant for the applicant pursuant to s 12(1) of the Extradition Act (s 12 decision).

3    Following the applicant’s arrest and remand in custody on 19 February 2019, the applicant made an application for bail pursuant to s 15 of the Extradition Act, before a magistrate of the State of New South Wales, submitting that there were “special circumstances” justifying remand on bail. On 27 June 2019, the magistrate refused to remand the applicant on bail pursuant to s 15(2) of the Extradition Act. The decision is an administrative one: Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 367 ALR 465 (Tsvetnenko) at [25]. As such, the decision is amenable to judicial review in this Court under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act): Yacoub v United States of America [2019] FCA 1682 (Yacoub) at [4].

4    The next stage in the extradition process is before a magistrate of the State of New South Wales to determine the applicant’s eligibility for surrender to Chile pursuant to s 19 of the Extradition Act (s 19 proceedings).

5    This proceeding is an application, pursuant to s 39B of the Judiciary Act, for review of the bail decision of the magistrate. While the originating application also sought that bail be granted, this Court does not have jurisdiction to grant bail at this stage of proceedings, as it is apparent from the terms of s 15(2) of the Extradition Act, jurisdiction to grant bail is confined to magistrates or eligible Federal Circuit Court judges, and an application for judicial review under s 39B does not, and cannot, bestow any jurisdiction upon this Court to grant bail under s 15 of the Extradition Act: Yacoub at [9].

Relevant principles

6    The principles for the grant of bail to a person who is the subject of extradition proceedings are well established, and differ significantly from those that apply to a person charged with a criminal offence under State, Territory or Federal law: Yacoub at [1].

7    Section 15(2) of the Extradition Act provides that a person arrested under an extradition arrest warrant shall be remanded in custody or, subject to section (6), on bail if “special circumstances” exist: Tsvetnenko at [7]. Relevantly, s 15 is in the following terms:

15 Remand

(1) A person who is arrested under an extradition arrest warrant shall be brought as soon as practicable before a magistrate or eligible Federal Circuit Court Judge in the State or Territory in which the person is arrested.

(2) The person shall be remanded by a magistrate or eligible Federal Circuit Court Judge in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under one or more of sections 15A, 18 and 19 to be conducted.

…

(6) A magistrate or eligible Federal Circuit Court Judge shall not remand a person on bail under this section unless there are special circumstances justifying such remand.

8    In United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 (Cabal) at [61]-[62] the High Court (Gleeson CJ, McHugh and Gummow JJ) concluded:

Given this background and the rationale for the “special circumstances” condition, bail in extradition cases should be granted only when two conditions are fulfilled. First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute “special circumstances”, the matters relied on “need to be extraordinary and not factors applicable to all defendants facing extradition”. Second, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. When there is a real risk of flight, ordinarily bail should be refused. Further, the risk of flight should be considered independently of the effect of the proposed bail conditions. In this area of law, the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions – even rigorous conditions. A person, fearing punishment and inclined to flee, is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions. Even if the defendant has to report twice daily to the police, he or she will have a period of twelve to fourteen hours in which to leave Australia.

Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted…

9    The Court had observed at [57]:

…In Australia, the existence of special circumstances is an essential condition of the grant of bail. It seems proper, therefore, to determine whether special circumstances exist before considering the question of flight, a matter that is highly relevant in the exercise of the general discretion. It may be going too far to say that, if there is any risk of flight, the Act requires that bail be refused, even if there are special circumstances. In a particular situation, the special circumstances may be so cogent that bail should be granted although there is a slight risk of flight. Nevertheless, to grant bail where there is a real risk of flight could only be justified in the most extraordinary circumstances. In the vast majority of cases, the proper exercise of discretion requires the refusal of bail if there is such a risk. To grant bail where a risk of flight exists is to jeopardise Australia's relationship with the country seeking extradition and to jeopardise our standing in the international community.

10    Recently, the Full Court (Besanko, Banks-Smith and Colvin JJ) in Tsvetnenko at [14], explained the staged nature of the test for bail in international extradition matters as follows:

So, there must be special circumstances. If so, then the risk of flight is to be considered together with all matters relevant to the exercise of a general discretion whether to grant bail. In the exercise of that general discretion, if there is a real risk of flight then the statutory discretion should be exercised by refusing bail (save for the extraordinary case). It is in that sense that the requirement that there be no real risk of flight becomes a second condition that should be fulfilled before bail is granted to a person arrested under an extradition arrest warrant.

11    To obtain relief under s 39B there must be identified either jurisdictional error or non-jurisdictional error on the face of the record: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]. Accordingly, close attention must be paid to the terms of the particular statute conferring the decision-making power, in this case s 15(2) of the Extradition Act, to discern the extent of any purported non-compliance.

12    As the High Court (Kiefel CJ, Gageler and Keane JJ) in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24] stated (footnotes omitted):

Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as “involving jurisdictional error” is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a “nullity”, in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as “no decision at all”. To that extent, in traditional parlance, the decision is “invalid” or “void”.

13    The statutory authority reposed in the magistrate under s 15(2) of the Extradition Act was described and commented upon by the Full Court in Tsvetnenko as follows at [24] and [30] :

The statutory authority that is relevant in the present case is contained in s 15(2) of the Extradition Act. It confers a discretionary power upon a magistrate or eligible Federal Circuit Court judge to remand on bail a person arrested under an extradition arrest warrant.

…

Importantly, the discretionary power conferred by s 15(2) is not expressly conditioned upon the magistrate or eligible judge being satisfied as to any particular matter. In particular, it is not expressly conditioned upon the magistrate being satisfied that there are special circumstances. The discretion to be exercised by the magistrate or eligible judge arises upon arrest of a person under an extradition warrant. When arrested the person must be brought before a magistrate or eligible judge: s 15(1). The person must then be remanded. It falls to the magistrate or eligible judge to exercise a discretion whether to remand in custody or on bail. The requirement that there be special circumstances is separately stated as a matter that must exist before there is any discretion to release on bail.

14    It follows, that this Court must identify an error “of a kind that it misdirected the magistrate in a manner and to an extent that there was a failure to undertake the statutory task or the task was discharged in a manner that meant it was outside the authority conferred”: Tsvetnenko at [43]; Yacoub at [14]. The Court’s task is limited to review of jurisdictional error, and is limited to the material before the magistrate: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27] per McKerracher J citing MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] per Nicholson J.

15    Given the nature of some of the applicant’s grounds it is appropriate also to refer to the observations in Tsvetnenko at [70], where the Full Court considered the concept of unreasonableness in the context of s 15 of the Extradition Act and stated:

As to review for unreasonableness, as noted above, statutory discretionary powers of administrative decision-makers are subject to a presumption that the power is to be exercised reasonably in accordance with the conceptions of the general law: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [53], [59], [80], [88], [131]. However, the Court must not stray into evaluating for itself how a discretion entrusted to a statutory decision-maker should be exercised. Therefore, the test as to whether a decision is unreasonable and therefore beyond power is ‘necessarily stringent’ (SZVFW at [11], Kiefel CJ), ‘extremely confined’ (at [52], Gageler J adopting the language of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36), ‘in the realm of the extraordinary’ (at [70], Gageler J) and is expressed in ‘strong terms’ (at [135], Edelman J).

Bail decision

16    The magistrate heard the bail application on 24 and 27 May 2019, and was provided with detailed written and oral submissions.

17    In her written reasons, the magistrate, briefly summarised the submissions of the parties and the background to the application. Her Honour identified a number of issues, amongst other things, which were matters raised for consideration on the bail application. They were: the need to muster legal funds for legal actions in Australia and Chile; preparation and exploration of legal action in Chile; preparation for challenge to the extradition documents and processes in the Federal Court; health issues and medical treatment; strong family ties in Australia; no steps to abscond or change her name knowing that extradition may be sought; surrender of her passport; delay of hearing the matter for up to 2-3 years; and surety of $50,000 offered in support of the bail application.

18    The magistrate referred to the authorities relevant to bail in extradition proceedings, including Cabal and Tsvetnenko, and correctly stated the relevant principles.

19    In relation to the applicant’s health issues, her Honour, after considering the evidence before her, found that the applicant had not demonstrated that her medical conditions were such that she could be satisfied there would be a serious deterioration to her health by incarceration giving rise to special circumstances. She concluded, on the evidence, that the range of care available in custody was sufficient to meet her health concerns. In relation to delay, the magistrate concluded, after referring to the relevant authorities, that the applicant had not demonstrated that the circumstances are different to the kinds of disadvantages that all extradition defendants have to endure and therefore on the facts were not special circumstances. In relation to the need to prepare for legal proceedings, the magistrate observed that the applicant accepted that the review and validity of the s 12 and s 16 decisions are outside the ambit of considerations for extradition bail. Again, after referring to the relevant authorities, while accepting that the preparation of legal challenges is not without difficulty, her Honour concluded that the applicant was in no different position to others incarcerated under the Extradition Act.

20    The magistrate acknowledged that a combination of circumstances can amount to special circumstances, however, also concluded that no special circumstances arose whether the considerations in this case were considered separately or together, and that the applicant was in no different position to anyone else facing extradition.

21    Further, the magistrate noted that denial of the allegations cannot be special circumstances, as there is no determination of guilt or innocence in the extradition process, noting that detention in this context is administrative, not punitive.

22    Even though the magistrate did not find special circumstances existed, and noted that on that basis, it appeared unnecessary to examine the applicant’s risk of flight, she concluded nonetheless that she would not have granted bail because in her view, the applicant was a real risk of flight. While acknowledging that the applicant may not be a “significant” flight risk, the magistrate accepted that the circumstances by which she came to leave Chile, and the heavy penalties for the serious charges she faces in Chile meant that an inference could be drawn that the applicant fled Chile to avoid justice.

Consideration

23    The originating application contains 18 grounds, one of which has 15 subparagraphs. Many of the grounds overlap.

24    The applicant’s written and oral submission in support of the grounds frequently addressed matters not relevant to an application for judicial review of a bail decision under the Extradition Act. Some would also not be relevant to an application for bail. The applicant’s submission in the Magistrates Court bore those same hallmarks.

25    In her written submission, the applicant noted that, in part, the complaint is that the magistrate’s decision was unreasonable in the Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) sense, in that it lacked an evident or intelligible justification. Relying on Li at [85], the applicant submitted that while it “may not be possible to say which of a number of possible errors were made…the result itself bespeaks error”.

26    However, in substance, much of the applicant’s submissions are bare assertions that challenge conclusions on the basis of no more than a disagreement with the conclusion. Dressing arguments under the guise of being “unreasonable”, or asserting that facts were “ignored” because the magistrate did not accept the argument or recite all the details of it, does not alter the nature of the challenge. So much is apparent from the fact that the applicant’s submissions were often prefaced by “it was open to the magistrate” or “it does not necessarily follow”.

27    In reality, the applicant’s submission is that she disagrees with the magistrate’s conclusion. This application is not a merits review. This Court does not have jurisdiction to conduct a review of the magistrate’s decision on this basis, and caution is required by the Court in assessing a complaint of unreasonableness to ensure that it does not impermissibly engage in a merits review of the decision: Li at [66].

28    In that context, the respondent categorised the applicant’s written submission and grounds into groups as follows:

(1)    the applicant was resident in Australia and there is “no record as to wrong doing in Australia”;

(2)    between 2006 and 2011, the applicant was in Chile, indicted for the offences the subject of the extradition request, but was not prosecuted to finality, amounting to delay in prosecuting and an absence of explanation for the delay;

(3)    that Chile had made previous extradition requests which was impermissible, in violation of the treaty and contrary to law;

(4)    the matter is complex;

(5)    the matter would take time to “unravel”;

(6)    the extradition has poor prospects of success;

(7)    the time that has passed since the events the subject of the charges;

(8)    the applicant denies the allegations made against her;

(9)    it was not open to the magistrate to find that “the health reasons” did not constitute special circumstances; and

(10)    the applicant was not a real risk of flight.

29    During the course of the hearing the applicant accepted that summary as accurate, although added that she submitted that while the magistrate was not to make a finding about the s 19 proceedings, she was obliged to form some assessment of the prospects.

30    During the hearing the applicant submitted that she put the application before the magistrate and in this Court, on the basis that special circumstances existed on two bases: first, the applicant’s health and second, matters about the extradition itself (complexity, delay and prospects of success). The applicant also addressed the issue of flight. I propose to address the submissions on those three topics. I note from the groupings of grounds identified above, health is subparagraph 9, matters relating to the extradition process are encompassed in subparagraphs 2-8, and flight is subparagraph 10. The remaining matter in subparagraph 1, was not advanced during the hearing. Suffice to say that ties to Australia, such as residency, are not a special circumstance justifying release on bail: Haddad v Lyon [2003] FCA 1623 at [19]; O’Donoghue v Ireland [2009] FCA 394 at [7]-[8]; Barney v United Kingdom [2012] FCA 51 at [35]; Taylor v United States of America [2012] FCA 366 at [29].

31    I note that in making submissions on the three topics identified above, the applicant did not directly address any of the arguments raised in the respondent’s written submission opposing her application.

32    Before addressing the argument I note that it is well settled that the reasons of an administrative decision maker are not to be “construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ citing the Full Court (Neaves, French and Cooper JJ) in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 287. And in respect to extradition applications, it was observed by Weinberg J in Timar v Republic of Hungary [1999] FCA 1518 at [63]-[64]:

It must also be recognised, however, that documents emanating from countries with which Australia has extradition arrangements will often be drafted in language and style which is very different from our own, and perhaps less than perfect from our perspective. Whether or not those documents can be said to meet the requirements of the Act is, as Gummow J observed in Wiest [Wiest v Director of Public Prosecutions [1988] FCA 450; (1988) 23 FCR 472], a matter for practical judgment. Such documents must, in my opinion, be read fairly, and not perversely.

It is not the case that every conceivable doubt or possible ambiguity of fact or law, no matter how inconsequential, must be resolved against the country seeking extradition…

33    That approach was endorsed by the Full Court (Mortimer, Wigney and Lee JJ) in Liem v Republic of Indonesia [2018] FCAFC 135; (2018) 265 FCR 251 at [127].

34    For the reasons below, none of the grounds are established.

Health

35    While the applicant identified this as a significant basis of her argument, only one paragraph of her written submission is directed to this which simply alleges that it was not open to the magistrate to conclude that health reasons were not special circumstances. In oral submissions the applicant contended that her health issues were not properly addressed.

36    Her Honour addressed the issue of health in paragraphs [22]-[41] of her reasons. Relying on Cabal, her Honour acknowledged that in some circumstances “health issues which cause a serious deterioration of health may constitute special circumstances”. Her Honour went on to consider the various submissions made by the applicant on this topic, including the details of medications taken, health history and information about ongoing pain suffered by the applicant, concluding that “there was nothing in the submissions or documents which supported a finding that the applicant has or would suffer from a serious deterioration of health caused by her incarceration in her circumstances”. It is apparent that her Honour considered the material relied on by the applicant and gave detailed reasons for rejecting the applicant’s submission that health conditions amounted to special circumstances justifying her being remanded on bail. The applicant did not point to or identify any error in the magistrate’s reasons in this respect.

37    No error is disclosed.

Matters relating to this extradition

38    Most of the applicant’s submission addressed matters which related to this particular extradition application (and the documentation in support) including the challenges or arguments which she contends she will make about the process during her application for judicial review in this Court of the ss 12 and 16 decisions, and the upcoming s 19 proceedings.

39    This submission was said to go to the issue of complexity, the delay it would take for the issues to be resolved and that there were poor prospects of success.

40    The applicant’s submission was in some respects inconsistent, accepting on the one hand that the magistrate was not deciding the issues under ss 19 or 22 of the Extradition Act, nor the challenges in this Court to the ss 12 and 16 stages of the extradition process, but submitting on the other hand that the magistrate, in assessing special circumstances in this case, could have made an assessment on arguments the applicant proposes to raise in each of those stages of the proceedings.

41    First, as noted above, the fact that the applicant denies the offence is not relevant. Her Honour concluded that denial of the allegations was not a special circumstance “as there can be no determination of guilt or innocence under Australia’s international extradition arrangements”: see Vasiljkovic v Commonwealth of Australia & Ors [2006] HCA 40; (2006) 227 CLR 614 at [33] and [34] per Gleeson CJ.

42    While the applicant accepted that it was not a relevant consideration, she nonetheless repeatedly relied on it. So much is clear from the applicant’s oral submission in which she noted that when “one looks at the material, it was open to the magistrate to assess the prospect of all of the next stages to come”, and that on the evidence before the magistrate, she could not have “appl[ied] this legislation to these facts and come to a conclusion that there's a real possibility that ultimately she might be convicted in Chile”. This contention cannot be accepted. As the magistrate correctly identified, the guilt or innocence of the applicant in the extradition offences bears no weight on the consideration of an application for bail under s 15 of the Extradition Act.

43    Second, and related, as the respondent correctly submitted, many of the matters relied on by the applicant are matters for the domestic criminal process in Chile, not for the extradition process.

44    Third, the applicant’s repeated submission in support of this argument, that the magistrate had an obligation to make inquiries about certain factual matters and come to particular conclusions on that basis, is without foundation. In the context of extradition proceedings, the onus is on the applicant in the bail application: Cabal at [70]. I note also that the assertion is inconsistent with the function being performed by other repositories of powers at the various other stages of the Extradition Act (including ss 12 and 16): Matson v United States of America [2018] FCAFC 57; (2018) 260 FCR 187 at [92]-[93].

45    Similarly, the applicant’s submission made orally, that the magistrate had not read the material, is also without any foundation. In any event, the magistrate’s reasons for decision clearly reflects otherwise. For example, the magistrate summarised Chile’s allegations against the respondent in paragraph [9]. That summary is clearly open from the material on the extradition. The applicant did not challenge the correctness of that summary until she was asked about its accuracy. That the applicant points to parts of the material which, she submitted, is inconsistent with that summary, or could not by itself, establish that, does not alter that proposition. As another example, the applicant submitted before the magistrate and in this Court, that the material showed that one of the charges had been dismissed in Chile. This was rejected by the magistrate, with this conclusion being reached on a clear consideration of the material relied on and finding that it did not support that submission.

46    Fourth, as to the question of delay, contrary to the applicant’s contention, the magistrate did not ignore this consideration or the facts, rather she accepted the extradition proceedings and resulting challenges would take “considerable time”. Her Honour referred to the relevant authorities, including Cabal at [66], and concluded that there had not been “unusual delay” such to constitute special circumstances. Her Honour applied the principles to the facts. No error is disclosed in her Honour’s findings in this respect.

47    Fifth, as to the question of complexity, the applicant repeatedly submitted here and in the Court below, that the extradition process concerning her is not “run of the mill” and is somehow out of the ordinary. The respondent challenged that assertion and submitted that the extradition process concerning the applicant is being conducted according to the requirements of the Extradition Act and extensive and well-settled Australian jurisprudence concerning extradition. The respondent’s submission must be accepted. This particular case is no different to the process any person facing extradition “would ordinarily endure”. The magistrate recognised that the applicant pointed to the complexity of such matters but concluded that while the preparation of legal and constitutional challenges is not without difficulty, the applicant is in no different position to others. There is no error in her reasoning process.

48    Sixth, as to the applicant’s prospects of success on the challenges she proposes to make to the extradition process, her submission was inconsistent as to relevance of, and approach to, this issue.

49    The respondent submitted that to the extent the applicant raised this ground before the magistrate it was made as an assertion and not developed as a discrete ground constituting a special circumstance, but only as a matter demonstrative of her intention to challenge the extradition process. The applicant relied on her intention to: (i) commence proceedings in the Federal Court seeking review of the s 16 decision; and (ii) to contest her extradition, both of which her Honour dealt with in her reasons.

50    The applicant did appear to rely on this aspect of this argument to demonstrate the complexity of the proceedings and the length of time that it will take to resolve, with the applicant taking avenues to contest her extradition as she is entitled to do. As noted above, the magistrate rejected those submissions as forming a basis for special circumstances in this case. Her Honour was not required to recite in her reasons each of the issues raised by the applicant as to potential arguments in the proceedings challenging the ss 12 and 16 decisions, or in the s 19 proceedings.

51    The applicant submitted, “that the very material that is being put forward by the requesting State shows substantial issues that might see it ultimately fail” and that the magistrate “could have formed some assessment…as to those issues being live issues that might see the extradition process come to an end” (emphasis added).

52    The respondent submitted that the applicant’s submission is no higher than saying there will be some uncertainty about the ultimate outcome. The language used by the applicant to describe her submission varied, and at times was inconsistent. However, properly considered, that accurately described the applicant’s submission, as illustrated by the passages recited in the paragraph above.

53    As the respondent correctly submitted, the s 19 proceedings have not yet occurred and therefore there have been no facts found, or decision made, to demonstrate that she has prospects of successfully resisting extradition. The applicant is, in effect, inviting this Court to consider surrender eligibility prior to a hearing (at which full submissions addressing that issue will be made). The respondent submitted at this stage in the extradition process, all that can be ascertained is that there is likely to be a dispute between the applicant and the respondent about her being found to be eligible for surrender pursuant to s 19. On the respondent’s submission, the ability to dispute or contest the satisfaction of the requirements for eligibility for surrender is not exceptional; it is open to all persons whose extradition is sought. The respondent contended that the strength of either party’s case with respect to eligibility for surrender cannot realistically be tested in the course of a bail application (which was not, in any event, before the magistrate). The respondent submitted it is nearly impossible to form a view with respect to the matters advanced by the applicant said to give rise to her having good prospects of resisting extradition, given the applicant’s submissions deal with these matters by way of bald assertions of non-satisfaction, disputing facts contained in the extradition request and identifying matters that may require consideration at subsequent stages of the extradition process.

54    As the magistrate correctly observed, and as was accepted by the applicant, the review of the various extradition decisions which the applicant is challenging is not part of her function. It was also accepted by the applicant that determining the s 19 issue was not part of her function. As the magistrate concluded, based on the applicant’s submission, they were outside the ambit of bail considerations for extradition bail. The applicant has not challenged the correctness of that conclusion. Nor has the applicant challenged the correctness of the magistrate’s summary of the considerations the applicant relied on in support of her bail application. That summary reflects that the applicant’s reliance on these issues as to prospects, was relevant to complexity, delay and the difficulty with preparation of her challenges.

55    That the applicant has sought judicial review in this Court of the ss 12 and 16 decisions does not advance her submission. Calling into question the extradition, and making applications challenging the s 12 and s 16 stage does not of itself reflect anything about the merit. Nor does the submission that the applicant is challenging the s 19 proceeding.

56    Given that the applicant’s submission is that it was “open” to the magistrate to assess the arguments, (even leaving to one side how that could be done at this stage of proceedings, particularly given the broad assertions on which it was based), that does not establish jurisdictional error.

57    It is recognised that a high probability of success in resisting extradition can be a relevant factor: Tsvetnenko at [15]. However, that does not assist the applicant, given the nature of this application, and the applicant’s argument as articulated in this Court and before the magistrate.

58    The applicant relied particularly on the decision of Moloney v New Zealand [2005] FCA 245 where Madgwick J granted bail to two persons pending the review of their extradition proceedings. Before the magistrate and in this Court, the applicant submitted, based on that decision that a prospect of an appeal succeeding could be special circumstances. However, the very brief judgment relied on by the applicant provides little assistance to her. Rather Madgwick J’s conclusion was no more than a consideration whether in that case bail ought to be granted. With respect, it addresses no point of principle.

59    The decision does not refer to or consider any authorities. Nonetheless, the case does not stand for the proposition that the prospect of the appeal succeeding (which in that case was from the s 19 determination), without more, amounts to special circumstances. In that case, the review being referred to, was a review of the magistrate’s decision to permit extradition to New Zealand. Madgwick J was to hear that review. While he formed the view that there were above average prospects of success in the appeal, he reached that conclusion “without in any way getting into the merits”: see at [2]. In that case, the magistrate had described the case as finely balanced. That was not the only factor; there was little actual prospect of flight, and for practical purposes no prospect for one applicant. Age was a factor, as was poor health. Madgwick J described the applicants as “people of quite outstanding character,” and that they were brothers in a religious order. Significantly, the applicants had been on bail before and had complied with the conditions. He described a decision to put them in jail at this stage, even if there was a presumption in favour of that, would be out of proportion with what was called for. It is plain that the case is factually distinguishable from this case.

60    This basis of the application for review (which encompasses a number of grounds) has not been established.

Flight

61    Notably, despite the significance of this consideration, and the reasons given by the magistrate, the applicant in her written submission paid scant attention to it. The lengthy written submission stated no more than the applicant is not a flight risk and the finding is unreasonable. In support of this contention, the applicant briefly drew attention to several factors, including that she had limited means such that flight was impossible due to her age and need for medical attention, had substantial ties to the community and her son had risked his home as security.

62    As is made clear in Cabal, where there is a real risk of flight ordinarily bail should be refused. The Court observed at [57]:

…Nevertheless, to grant bail where there is a real risk of flight could only be justified in the most extraordinary circumstances. In the vast majority of cases, the proper exercise of discretion requires the refusal of bail if there is such a risk. To grant bail where a risk of flight exists is to jeopardise Australia's relationship with the country seeking extradition and to jeopardise our standing in the international community.

63    Apart from the general assertion that the finding was unreasonable, the applicant does not point to any error in the reasoning process or explain why the finding is unreasonable in the Li sense, in that the magistrate’s decision lacked an evident and intelligible justification.

64    The applicant’s oral submission was more an argument as to why she was not a flight risk rather than an attempt to establish any jurisdictional error with the magistrate’s reasoning. The applicant submitted that while “on her own admission, she left Chile whilst on bail, that does not necessarily mean that she was a flight risk”. The applicant took issue with the contention that she fled Chile, but rather described it as that she “simply came home” to Australia. Ultimately, the applicant submitted there was no evidence that she was a flight risk given her explanation for why she left Chile, and that the magistrate failed to consider/reject this explanation.

65    The respondent submitted that the applicant’s arguments in relation to flight, were again only “directed to the merits or the ultimate outcome of the decision, rather than pointing to unreasonableness”. The respondent drew attention to the fact that the magistrate had identified that it was “unnecessary” to examine the risk of flight, but felt it prudent to do so, and had considered the claims at paragraphs [66] and [67] of her reasons. Further, the respondent submitted that the applicant had identified no error in the conclusions her Honour reached on this point at paragraph [75] of her reasons.

66    As correctly identified by the respondent, the magistrate’s reasoning was comprehensive and unobjectionable. On any scenario, as the magistrate found the applicant was on bail in Chile and subject to bail conditions when she left Chile in breach of those condition, and came to Australia via Argentina. The magistrate accepted the respondent’s submission, unsurprisingly, as it is consistent with the applicant’s own description in a documentary of how she left Chile. As the magistrate found at paragraph [71], the medical notes taken shortly after the applicant arrived in Australia demonstrate that she knew she was subject to bail conditions, that she was under house arrest and that she escaped. As noted above, in the circumstances that the applicant fled Chile the magistrate concluded that an inference can be drawn that she fled to avoid justice.

67    The applicant points to no error. The applicant has not established any error in this finding.

Conclusion

68    In reality the applicant’s submission is a complaint about the result of the bail decision, with little, if any attempt to identify jurisdictional error. The grounds have not been established. Accordingly the application is dismissed.

Associate:

Dated:    21 November 2019