Federal Court of Australia

Ireland v Dunne [2021] FCA 245

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the originating application dated 11 January 2021 in terms sought by the applicant is granted.

2.    The application for judicial review is allowed.

3.    The decision of the second respondent made on 22 December 2020 pursuant to s 15(2) of the Extradition Act 1988 (Cth) remanding the first respondent on bail be quashed by writ of certiorari.

4.    The second respondent consider and determine the first respondent’s application for bail according to law.

5.    The first respondent surrender himself into his former custody in accordance with the written direction of the Attorney-General’s Department as to the place and manner of that custody.

6.    The first respondent pay the applicant’s costs to be agreed or taxed.

THE COURT DECLARES THAT:

1.    The order of the second respondent of 21 December 2020 under s 15(2) of the Extradition Act 1988 (Cth), whereby the second respondent remanded the first respondent in custody, remains in effect.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    Pursuant to an extradition request presented to Australia, the applicant, Ireland, has sought the extradition of Mr Dunne, the first respondent (respondent) to Ireland to face prosecution. It is alleged that he committed six offences of indecent assault and 11 offences of attempted rape against his younger sister between January 1980 and January 1983. On 22 December 2020, Magistrate Bazzani (the Second Respondent or the Magistrate), a Magistrate of the State of Victoria, remanded the respondent on bail (the Decision) pursuant to s 15(2) of the Extradition Act 1988 (Cth). Ireland applied for review of the Decision of the second respondent pursuant to s 39B of the Judiciary Act 1903 (Cth).

2    In summary, Ireland submitted: first, the Magistrate misconstrued the test applicable to the exercise of power conferred by s 15(2) of the Extradition Act; second, as a result the Magistrate took into account irrelevant matters in finding that the respondent met the standard of special circumstances as required in s 15(6) of the Extradition Act; third, the exercise of power was unreasonable such that no decision maker could have exercised the power to find the circumstances relied on by the respondent were, either alone or in combination, special circumstances; fourth, the Magistrate misconstrued the test for flight risk; and fifth, that as her Honour did not engage in an active intellectual process in considering the matters she was required to and Ireland is unable to determine from a fair reading of the Decision what matters were considered “special circumstances”, it has been denied procedural fairness.

3    On 19 February 2021, shortly prior to the hearing date for this review, this matter was before the same Magistrate (the February Mention), at which time the proceeding was further adjourned and the bail granted to Mr Dunne by the Decision on 22 December 2020 was extended (Bail Extension) to 25 March 2021. The adjournment was granted to enable this proceeding to progress to resolution.

4    Nonetheless, the February Mention gave rise to a submission by the respondent that this judicial review application is futile as the impugned order had been superseded, and therefore the relief sought was no longer available. In that context Ireland applied to amend the originating application to argue, in the alternative, that if that the Bail Extension is the relevant decision it was also infected by jurisdictional error. It submitted that irrespective of which decision is operative, it is infected by jurisdictional error and should be set aside.

5    The respondent opposed leave being granted to amend the application, and although he made submissions on that topic, he could not identify any relevant prejudice. He did not suggest he was not in a position to address the issues raised at the hearing. The respondent also made submissions as to the proper interpretation of the February Mention and why, based on that hearing, this proceeding should be dismissed. The respondent chose not to make any submission, either written or oral, in relation to the substance of the Decision, and whether it was infected by jurisdictional error in the manner contended for by the applicant. In that respect there was no contradictor.

6    This Court has power to grant leave to amend pleadings. The onus is on the party seeking leave to persuade the Court that such leave should be given: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [17]. The amendments arise solely due to the argument the respondent raises as a result of the events of the February Mention. In my view there is no relevant prejudice. The amendment enables issues before this Court to be properly considered. I grant leave to Ireland to amend its pleadings as sought.

7    For the reasons given below, the application for judicial review is allowed.

Factual background

8    The respondent is a dual citizen of Australia and Ireland born on 17 July 1966. As noted above, his extradition is sought by Ireland in relation to a number of sexual offences allegedly committed by him against his younger sister. The respondent’s sister made a complaint to Irish Police (Garda) on 26 August 2014. The respondent voluntarily attended an interview with the Garda on 28 August 2014, while he was on holiday in Ireland.

9    On 5 June 2019, Judge John Lindsay, a Judge of the District Court of Dublin, issued arrest warrants against Mr Dunne in relation to the 17 offences referred to above.

10    On 10 March 2020, the Attorney-General issued a notice stating that an extradition request had been received from Ireland for Mr Dunne under s 16 of the Extradition Act.

11    On 20 March 2020, in response to an application made on behalf of Ireland, a magistrate of the Australian Capital Territory issued an extradition arrest warrant for Mr Dunne under s 12 of the Extradition Act.

12    On 18 December 2020, in response to Ireland’s extradition request, the respondent was arrested by the Australian Federal Police and appeared before the Magistrate in the Bail and Remand Court at the Melbourne Magistrates’ Court. Following short submissions in which the respondent’s legal representative sought bail, the matter was adjourned to 21 December 2020. On 21 December 2020, the bail application resumed and the parties addressed the Magistrate. The Magistrate adjourned the hearing until the following day in order to consider her decision. On 22 December 2020 the Magistrate granted the respondent bail pursuant to s 15(2) of the Extradition Act subject to a number of conditions and gave oral reasons to that effect (Decision).

13    At that time the matter was adjourned for the respondent to appear before a Magistrate on 22 February 2021. It is the events of that mention, which ultimately took place on 19 February 2021 that are relevant to the submission put by the respondent as to the futility of this application for judicial review. It is therefore appropriate to provide a chronology of events.

14    On this application the applicant read two affidavits of Lisa Hemingway, the first affirmed on 11 January 2021, and the second on 25 February 2021. The respondent read an affidavit of Ruth Parker dated 25 February 2021. The affidavits were admitted without objection.

15    Between 23 December 2020 and 16 February 2021, the parties did not correspond in relation to the February Mention.

16    On 9 February 2021, a case management hearing was held in this Court and a timetable set for hearing this judicial review application on 26 February 2021. At that time, the mention hearing remained listed for 22 February 2021. The issue of expedition of this proceeding was discussed in the context of there being a dispute as to the appropriate timetable. The solicitor for Mr Dunne sought time to arrange funding and to accommodate the availability of his counsel and explained that from his perspective there was no urgency to have the matter heard. No issue was raised, given the dates discussed for hearing, of any effect of the February Mention on the Decision.

17    On 16 February 2021, Mr Dunne’s solicitor emailed Ireland’s solicitors requesting an extension of time to file submissions in these proceeding, and to bring forward the February Mention to 19 February 2021. The respondent’s solicitor noted that the recent lockdown in Melbourne had prevented counsel from accessing the file and the change in dates would “free up the availability of counsel on Monday”. In response, Ireland consented to the change of both dates. On 17 February 2021, Ireland’s solicitors sought clarification from Mr Dunne’s solicitor as to his position relating to extradition. No response was provided.

18    On 18 February 2021, counsel for Ireland contacted counsel for Mr Dunne to ascertain Mr Dunne’s position. By email, counsel for Mr Dunne stated that Mr Dunne would consent to his extradition pursuant to s 18 of the Extradition Act. Following this correspondence, Ms Hemingway telephoned Ms Parker and was informed that Mr Dunne was consenting to his extradition and that he wished for the consent determination and bail hearing to proceed at the next hearing.

19    On the afternoon of 18 February 2021 and the morning of 19 February 2021, Mr Dunne’s legal representatives filed submissions and material in support of an application for bail under s 18(3) of the Extradition Act. Mr Dunne’s submissions expressly stated “Mr Dunne makes application to remain on bail pursuant to s 18(3) of the Act”.

20    On 19 February 2021, the matter was before the same Magistrate, the second respondent. Ireland subsequently obtained a recording of the hearing, which was transcribed. Ms Hemingway’s affidavit exhibits that transcription. Although some words or passages were inaudible, Mr Dunne did not challenge the accuracy of the transcription. In addition, exhibited to that affidavit is a file note prepared by a solicitor for Ireland who was present at the hearing. Ms Hemingway, who was also present at the February Mention, give evidence that the file note accords with her recollection. No challenge was made by Mr Dunne to the accuracy of that note, or the evidence of Ms Hemingway.

21    It is apparent that although Mr Dunne’s counsel sought to have the Magistrate make a decision regarding Mr Dunne’s eligibility for extradition and to determine a bail application brought by Mr Dunne under s 18(3), the Magistrate refused to do so. Ireland had opposed Mr Dunne’s course on the basis that this hearing was to occur imminently and the issues raised in it ought to be resolved. To that end, Ireland sought the matter be adjourned and Mr Dunne’s current bail simply be extended.

22    After hearing argument the Magistrate made it clear that she was unwilling to progress the proceedings while this judicial review application was on foot. In that circumstance, the Magistrate adjourned the proceedings until 25 March 2021 and Mr Dunne’s bail was extended to appear on that date. The Magistrate stated that she “failed to see any reason not to extend the bail”.

23    On the afternoon of 22 February 2021, Mr Dunne served his submissions in this matter on Ireland’s representatives which advanced the proposition that the Decision, which was the subject of the review, had been superseded, with the consequence that the relief sought is not available. Further, it foreshadowed that he would rely on an additional affidavit as to what had occurred in relation to the February Mention. On the morning of 23 February 2021, Ms Hemingway wrote to Mr Dunne’s legal representatives to express that Ireland did not accept Mr Dunne’s characterisation of the Magistrate’s decision to extend bail, and put Mr Dunne on notice that, in the event it was necessary to do so, Ireland would seek leave to amend its originating application to seek review of the Magistrate’s decision to extend bail on 19 February 2021. On 24 February 2021, Ms Hemingway provided a draft proposed amended originating application to Mr Dunne’s legal representative. Ms Hemingway repeatedly requested a copy of the foreshadowed affidavit as none had been provided. On 25 February 2021, Ireland filed and served the affidavit of Ms Hemingway which included inter alia, an amended originating application, the basis on which it was sought and the transcript of the February Mention. Thereafter, an affidavit of Ms Parker, Mr Dunne’s solicitor, was filed and served. It is apparent from the content of Ms Parker’s affidavit that it was not prepared by reference to any recording (or transcript) of the February Mention. The affidavit is brief, and even allowing for some parts being inaudible, aspects do not appear to accord with the transcript of the hearing. Importantly, it does not accord with what the Magistrate had determined to do, namely conduct the matter so as not to interfere with this judicial review and adjourn the hearing. I note that although that affidavit was read by Mr Dunne on the application, it was not referred to or relied on by his counsel during the course of his submissions. Where there is a conflict between the evidence of Ms Parker and Ms Hemingway, Ms Hemingway’s evidence is to be preferred.

February Mention

24    As will have been apparent from the description thus far, the significance of the February Mention is that the characterisation of what occurred underpins the respondent’s submission as to which decision this judicial review applies.

25    On 19 February 2021, Ireland advocated that the proceedings before the Magistrate should be adjourned to enable this hearing to occur. To that end, Ireland submitted that Mr Dunne’s bail simply be extended. The Magistrate determined that the proceeding should be adjourned to enable this hearing to occur. In those circumstances, the Magistrate adjourned the hearing and extended bail. It is plain that the Magistrate turned her mind to the question of whether a decision made by her would render the review proceedings nugatory, and expressly took steps to avoid that outcome. A proper reading of the evidence is that the Magistrate did not consider her action in extending bail to be tantamount to making a new decision on bail. Rather, the Magistrate spoke expressly about extending bail, and given the context, it must be on the same basis as the Decision.

26    I do not accept Mr Dunne’s submission that although the Magistrate referred to bail being extended she, in reality, considered (and determined) a fresh bail application.

27    Leaving aside Mr Dunne’s submission about the effect of s 15 of the Extradition Act, it is unclear how it can be factually contended that a fresh bail application was considered when he accepted during this hearing that the Magistrate had determined to adjourn the proceedings and to do what was necessary to ensure this proceeding could occur. This is in the context where Ireland submitted that it was “simply an extension of the bail already provided”. Regardless of what Mr Dunne might have urged the Magistrate to do, his submission was not accepted. For a start, no application for bail was made, and no submissions in support were put in that context. There was no bail hearing. There is no basis to contend that the Magistrate took into account the material filed by him in support of his s 18 application.

28    I will return to the effect of those findings in light of the construction of s 15, and the argument advanced by Mr Dunne. However, the construction of s 15 cannot alter the characterisation of what factually occurred at the February Mention. Section 15 cannot convert the Bail Extension into a fresh bail application and determination on its merits.

29    It is appropriate to first consider the principles relevant to international extradition and the statutory scheme which provides the relevant context in which s 15 exists.

The extradition process

30    The extradition process is described as involving four stages: Harris v Attorney-General (Commonwealth) [1994] FCA 621; (1994) 52 FCR 386 at 389 (Harris) per Beaumont, Einfeld and Foster JJ; Liem v Republic of Indonesia [2018] FCAFC 135; (2018) 265 FCR 251 (Liem) at [21] per Mortimer, Wigney and Lee JJ. First, the commencement of the extradition process (see ss 12 and 16); second, the arrest and remand or bail of a person (s 15); third, the determination of whether a person is eligible for surrender (see s 19, and a right of review and appeal to this Court under s 21); and fourth, the discretionary decision of the Attorney-General of whether a person, if eligible, should be surrendered (see s 22).

31    Other than the appeal under s 21, the powers conferred are administrative: Director of Public Prosecutions of the Commonwealth v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 (Kainhofer) at 538 per Brennan CJ, Dawson and McHugh JJ.

32    As noted above, at the time of this application the extradition process relating to the applicant is at the stage that ss 12 and 16 are completed.

33    Section 12 is as follows:

12 Extradition arrest warrants

(1) Where:

(a) an application is made, in the statutory form, on behalf of an extradition country to a magistrate or eligible Federal Circuit Court Judge for the issue of a warrant for the arrest of a person; and

(b) the magistrate or Judge is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country;

the magistrate or Judge shall issue a warrant, in the statutory form, for the arrest of the person.

(2) The magistrate or Judge shall forthwith send to the Attorney-General a report stating that the magistrate or Judge has issued the warrant, together with a copy of the affidavit.

(3) Where:

(a) the Attorney-General has received the report under subsection (2) or has otherwise become aware of the issue of the warrant;

(b) the person has not been arrested under the warrant; and

(c) either:

(i) the Attorney-General decides not to give a notice under subsection 16(1) in relation to the person; or

(ii) the Attorney-General considers for any other reason that the warrant should be cancelled;

the Attorney-General shall, by notice in writing in the statutory form, direct a magistrate or eligible Federal Circuit Court Judge to cancel the warrant.

(4) A notice given under subsection (3) is not a legislative instrument.

34    In Matson (Roger) v Keenan [2016] FCA 1549 at [31], Rangiah J described s 12 as follows:

Section 12 of the Act requires that the Magistrate be satisfied “on the basis of information given by affidavit” that the person is an extraditable person. If the Magistrate is so satisfied he or she “shall issue a warrant”. The Magistrate has no residential [sic – residual?] discretion to refuse to issue an arrest warrant. Therefore, the applicant’s ill health and allegations of dilatoriness in the prosecution were irrelevant to the Magistrate’s decision.

35    Section 16 is as follows:

16 Notice by Attorney-General

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

Person must be extraditable person in relation to extradition country

(2) The Attorney-General must not give the notice unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country.

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

(a) a copy of the notice; and

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

shall be given to the person.

(4) A notice given under subsection (1) is not a legislative instrument.

36    As to the application of s 16, in Matson v United States of America [2018] FCAFC 57; [2018] 260 FCR 187 (Matson No 2) at [92] Dowsett, Wigney and Bromwich JJ observed:

…Mr Matson’s challenge to the Minister’s decision under s 16 fails at a more fundamental level. That is because it is tolerably clear that issues concerning delay on the part of the country seeking extradition have little, if any, role to play at the s 16 stage of the extradition process. Nor is the Minister under any duty at the s 16 stage to investigate issues such as delay, or indeed any other issues that fall outside the matters that must be considered at the s 16 stage. Those matters are, essentially, whether an extradition request has been received from an extradition country, and whether the person whose extradition is sought is an extraditable person in relation to the extradition country. Matters such as delay are issues for consideration at later stages of the process.

And see Foster v Attorney-General (1998) 158 ALR 394; (1997) 97 A Crim R 560 at 575 per Cooper J.

37    It is also appropriate to refer to what is involved in the remaining stages of the extradition process, although those stages occur after the decision the subject of this application.

38    Section 19 involves a determination of eligibility for surrender, which is relevantly in the following terms:

19 Determination of eligibility for surrender

Where:

(a) a person is on remand under section 15;

(b) the Attorney‑General has given a notice under subsection 16(1) in relation to the person;

(c) an application is made to a magistrate or eligible Federal Circuit Court Judge by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and

(d) the magistrate or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate or Judge shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.

(1) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(a) the supporting documents in relation to the offence have been produced to the magistrate or Judge;

(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate or Judge of any other documents – those documents have been produced to the magistrate or Judge;

(c) the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d) the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

39    In determining eligibility for surrender a magistrate or eligible Federal Circuit Court Judge is confined to considering the matters specified in ss 19(1) and (2) of the Extradition Act and cannot have regard to other matters falling outside the ambit of those sections: Kainhofer at 538 per Brennan CJ, Dawson and McHugh JJ. It is not the function of the magistrate or eligible Federal Circuit Court Judge hearing an application pursuant to s 19 to determine whether the requesting State has met an obligation imposed under a treaty: Timar v Republic of Hungary [1999] FCA 1518 at [82] per Weinberg J citing Federal Republic of Germany v Parker (1998) 166 ALR 522; (1998) 84 FCR 323 at 339 per Ryan, Einfeld and Foster JJ and Harris at 412-3 per Beaumont, Einfeld and Foster JJ. Nor is it permitted to consider or determine the validity or appropriateness of prior findings or decisions under the Extradition Act: Kainhofer at 538 per Brennan CJ, Dawson and McHugh JJ. Rather, it must proceed on the basis that, if the order of remand under s 15 and the s 16 notice are not invalid on their face, the person is an extraditable person and the orders are valid: Kainhofer at 539 per Brennan CJ, Dawson and McHugh JJ.

40    The fourth stage of the extradition process appears in s 22 of the Extradition Act, which provides, inter alia, that after the person has been committed to prison or released on bail by order of a magistrate or eligible Federal Circuit Court Judge, the Attorney-General must determine whether the person “is to be surrendered”: s 22(2), and provides that the person is only to be surrendered if the Attorney-General is satisfied of certain specified matters and, if “in his or her discretion, considers that the person should be surrendered in relation to the offence”: s 22(3)(f).

41    Surrendering a person pursuant to s 22 of the Extradition Act gives effect to Australia’s treaty obligations: United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 (Cabal) at [58] per Gleeson CJ, McHugh and Gummow JJ.

42    If an extraditee consents to extradition, s 18 of the Extradition Act outlines the relevant procedure to be applied. The magistrate is nonetheless required to be satisfied of certain factors. If the magistrate is so satisfied, s 18(2)(b) requires an order be made that the extraditee be either held in gaol or released on remand. The magistrate must not release the extraditee on bail unless there are special circumstances justifying such release: s 18(3).

Section 15

43    The decision to remand a person under s 15 of the Extradition Act, whether in custody or on bail, is an administrative decision. This Court has jurisdiction to grant the relief sought by the applicant pursuant to s 39B(1A) of the Judiciary Act: Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 (Tsvetnenko) at [22].

44    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 s 15(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.

(3) If a person is remanded in custody after making an application for bail, the person cannot make another application for bail during that remand unless there is evidence of a change of circumstances that might justify bail being granted.

(4) At any time before proceedings under section 15A, 18 or 19 commence in relation to a person (in this section called the transferee) who is on remand under subsection (2), the Attorney General may, by warrant in the statutory form:

(a) where the transferee is in custody—direct a magistrate or eligible Federal Circuit Court Judge to order the release of the transferee into the custody of a specified police officer and authorise that police officer to take the transferee in custody to appear before a magistrate or eligible Federal Circuit Court Judge in a specified State or Territory; or

(b) where the transferee has been granted bail—direct a magistrate or eligible Federal Circuit Court Judge to order the discharge of the recognizances on which bail was granted and authorise a specified police officer to take the transferee in custody to appear before a magistrate or eligible Federal Circuit Court Judge in a specified State or Territory.

(5) The transferee shall be remanded by a magistrate or eligible Federal Circuit Court Judge in the specified State or Territory 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.

45    Section 49B, which was inserted in 2012 by the Extradition and Mutual Assistance Amendment Act 2012 (Cth), states:

49B Orders for bail to be on terms and conditions court, magistrate or Judge thinks fit

A decision under this Act of a court, magistrate or eligible Federal Circuit Court Judge to remand or release a person on bail may be made on such terms and conditions as the court, magistrate or Judge thinks fit.

46    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 v United States of America [2019] FCA 1682 (Yacoub) at [1].

47    In Cabal at [58]-[61] the High Court (Gleeson CJ, McHugh and Gummow JJ) explained the rationale for the refusal of bail in extraditions cases. At [58] the Court observed:

Where a person is found in Australia and an extraditable offence is alleged against him or her, this country is obliged to return that person to the country seeking extradition. Australia therefore has a very substantial interest in surrendering the person in accordance with its treaty obligations. If Australia fails, when requested, to return a person against whom there is probable cause for concluding that he or she has committed an extraditable offence, it breaches its obligations under international law. If Australia fails to comply with a treaty, the rules of international law entitle the other party to the treaty to repudiate or suspend the performance of its own obligations under the treaty. A repudiation or suspension by another country of its extradition treaty obligations to Australia would hinder this country's ability to enforce its own laws. In an era where much crime is transnational, the breakdown of international co-operation in apprehending criminals would be disastrous for the peoples of the countries concerned. Such a breakdown may do more than inhibit the apprehension of persons who have committed crimes against Australian law. If other countries think it not worthwhile to seek extradition from Australia, Australia may become a haven – at least for a time – for those who have committed serious crimes in other countries. They may well commit similar offences here.

48    In Cabal at [61]-[62] the Court concluded (citations omitted):

[61]. 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.

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

49    The Court had also 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.

50    In Tsvetnenko, the Full Court (Besanko, Banks-Smith and Colvin JJ) explained the staged nature of the test for bail in international extradition matters as follows:

[14] 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.

51    The Court also addressed the situation of a combination of circumstances being advanced as special circumstances at [16]-[17]:

[16]. More usually, an applicant for bail will rely upon a combination of circumstances. In such instances, it will be important to evaluate the combination of factors together in determining whether the prohibition in s 15(6) applies to prevent the grant of bail. Perram J in United States of America v Green [2009] FCA 638 (Green) at [34]-[35] lamented the absence of direct guidance in Cabal as to how a magistrate or eligible judge should determine whether multiple non-special circumstances may together constitute special circumstances. It appears that the task is to consider in aggregate the matters relied upon and reach a view as to whether their summation gives them a character that each lack when viewed individually. The circumstances, when combined in one person, must be sufficient to make them different from the circumstances a person 'would ordinarily endure': Cabal at [61]. The matters relied on 'need to be extraordinary and not factors applicable to all defendants facing extradition': at [61]. The Court referred to bail being 'ordinarily refused because there is a presumption that the defendant will flee the jurisdiction': at [63]. In considering whether delay will constitute special circumstances, the Court said that it would be such a circumstance 'only when it is outside what could be regarded as the normal range for offences of the type and complexity of the proceedings': at [66] (a form of words that may be applied where multiple non-special circumstances are relied upon). The Court also described being held in custody as 'the general rule' in extradition cases: at [72]. Taken together, these statements require that a combination of non-special circumstances must go further than simply demonstrating distinctive aspects of the person seeking remand on bail that make them different from others facing similar extradition charges. Rather, the circumstances must be different in a respect and to a degree that means being remanded in custody will have adverse consequences that would not generally apply to those detained during the course of the extradition process. Further, they must take the case out of the ordinary when it comes to the disadvantages of being remanded in custody during the course of extradition proceedings (for charges of the kind involved in the particular case). The disadvantages must be of a kind that makes the particular instance extraordinary or exceptional. A particular combination of circumstances is not 'special' for the purposes of the Extradition Act provisions concerning bail unless they rise to that character. Otherwise, the circumstances fall within those which generally apply and bail must be refused.

[17]. Therefore, on any application for bail in an extradition case it will be important to consider the precise combination of circumstances advanced in support of the application as satisfying the statutory requirement that there must be 'special circumstances'. It will be necessary to evaluate whether those circumstances have been established and then consider whether those that have been established, when taken together, are 'special' in the sense that they are different from those ordinarily to be endured by a person facing extradition. The circumstances may be special because one particular circumstance takes the case out of the ordinary or because the combination of circumstances does so. If and when special circumstances are proved, then all the circumstances of the case must be considered, the chief of those being the risk of flight. When there is a real risk of flight ordinarily bail should be refused.

52    Against that background I turn to the respondent’s submissions about the construction and effect of s 15.

Submissions

53    The respondent’s submission is that the Decision was only capable of operation for the period of remand before the matter returned before the Magistrate for the February Mention. He submitted that s 15 contemplates “[s]uccessive periods of remand” citing Cabal v United Mexican States (No 2) (2000) 171 ALR 305 (Cabal (No 2)) at [19]. Mr Dunne submitted that a decision to either remand a person in custody or on bail pursuant to s 15(2) is effective only until the next return date, when a discrete decision to remand a person in custody or on bail is required. A fresh decision is required for each of the “successive periods of remand” that follow each hearing before a magistrate. The decision must be made in light of the material before the court, and the issues relevant to a grant of bail at that time. The effect of the submission was that even if the extraditee is on bail (and there has been no issue of any breach of a condition) and even if it is agreed between the parties that bail should continue, nonetheless the magistrate must consider the matter afresh on the material before them and determine whether they are satisfied that special circumstances exist such as to justify release on bail. The respondent described it as a fresh bail application. He submitted that as a consequence of it being a fresh decision, the Decision has been superseded, and the review nugatory, citing Perder Investments Pty Ltd v Elmer (1991) 31 FCR 202 (Elmer) at 204-205.

54    Ireland did not accept that any fresh decision was made at the February Mention. It contended that the Decision remained operative. Mr Dunne remains on bail pursuant to the Decision. It submitted that an administrative order made was by the Magistrate to extend Mr Dunne’s bail which had been granted for the reasons given in the Decision, to return to Court on 25 March 2021. He made no fresh application for bail (nor, because he was on bail, was he required to do so). He has not (to Ireland’s knowledge) breached his bail conditions, nor has any change of circumstances arisen under s 15(3) such that required Mr Dunne to make a fresh bail application. Ireland submitted that the effect of Mr Dunne’s construction of s 15 is that every time an extraditee comes before a magistrate or eligible Federal Circuit Court Judge at the remand stage, the magistrate or Judge must make a fresh decision about the extraditee’s bail.

55    Ireland submitted that, on a proper construction of s 15, a magistrate or eligible Federal Circuit Court Judge only makes a decision regarding bail when an application is made. An application can only be made in two circumstances, first, following the presentation of the extraditee to a magistrate or eligible Federal Circuit Judge after arrest under s 15(1), an extraditee may make (immediately or following timetabling) an application for bail under s 15(2), and second, where a further application is made under s 15(3), such additional application can only be made where a change of circumstances has occurred.

56    It submitted that the respondent’s argument conflates the performance of functions and powers under the Extradition Act by magistrates or eligible Judges acting as persona designata, with administrative procedures to be followed to give effect to decisions under the Extradition Act. The construction proposed by Ireland is consistent with both the text and context of s 15 and should be preferred.

57    Ireland submitted that if, contrary to its submission, it is the Bail Extension that is relevant, as that was an extension of the Decision, jurisdictional error is established. For that purpose Ireland sought leave to amend its claim to include the Bail Extension, but otherwise it remained the same.

Consideration

58    For the reasons below, the applicant’s submission as to the construction of s 15 must be accepted.

59    The starting point for ascertaining the meaning of a statutory provision is the text of the statute having regard is to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14], citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47]; Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 381 ALR 601 at [14].

60    A number of observations can be made about the provision. For the sake of convenience I will refer only to a magistrate as that it the operative person in this case. The reasons necessarily encompass an eligible Judge.

61    First, in the context of international extradition, bail is ordinarily refused because there is a presumption that the defendant will flee the jurisdiction: Cabal at [63]. In international extradition cases, the general rule is that defendants are to be held in custody whether or not their detention is necessary, and it is only when there is something special about a defendant's circumstances that bail can be considered: Cabal at [72]. It follows that although bail can be granted it is limited by the requirement in s 15(6) that the extraditee not be remanded on bail unless there are special circumstances justifying such remand.

62    Second, in that context, bail is considered where an application is made. Section 15(3), which was amended to its current form in 1997, provides that if a person is remanded in custody after making a bail application, the person cannot make another application during the remand unless there is evidence of a change of circumstances that might justify bail being granted. That reflects that the grant of bail is premised on the notion of an application being made.

63    This plain reading of the provision is reflected in the Explanatory Memorandum relating to the Extradition Bill 1996, which is recited in Cabal (No 2) at [13], as follows:

This amendment corrects a deficiency in the previous provision. Subsection 15(3) previously provided that where a magistrate remands a person in custody after the person has made an application for bail, the person is not entitled to apply to any other magistrate for release on bail during that remand. The purpose of the provision is to restrict ‘magistrate shopping’, but the provision could have had a more far-reaching application than was originally intended, for instance, in cases where a magistrate dies, resigns or retires. The amendment avoids that possible effect by making it clear that if a person makes an application for bail and fails, the person is not able to make a further application unless there is evidence of a change in circumstances that might justify bail being granted.

64    More fundamentally, the grant of bail in the Extradition Act is limited to special circumstances being established, which reflects that it is considered on an application being made. The matters which may be capable of satisfying that description either singularly or in combination, given the test of special circumstances articulated in Cabal, are matters which are quintessentially matters known to the extraditee. The extraditee bears the onus of establishing such circumstances, which ordinarily will require evidence to establish the factual matters relied on, at least in relation to some matters.

65    Third, the remand stage follows the arrest of a person pursuant to an extradition arrest warrant issued under s 12 of the Extradition Act, and ends when proceedings under one of more of ss 15A, 18 and 19 are conducted. Section 15(2) provides the person shall be remanded in custody or on bail “for such period or periods as may be necessary for proceedings under one or more of ss 15A, 18 and 19 to be conducted”: and see s 15(5). This reflects that the legislature recognised there may need to be more than one period of remand under any of these stages of proceedings. It follows that the legislature turned its mind to the fact that bail may need to be extended by using the term “period or periods” in s 15(2) (and 15(5)).

66    The practical effect of Mr Dunne’s construction as articulated during the hearing, is that even if an extraditee had established special circumstances and been released on bail, and irrespective of the period of time and reason for which the matter is adjourned, the extraditee must necessarily make a fresh bail application and a fresh decision must be made by the magistrate as to whether special circumstances have been established on the material.

67    The provision, considered in context and given its purpose, does not support that proposition. The provision does not specify, in that context, that such application and fresh decision as to whether special circumstance exist has to be made on each occasion. Either, bail has been refused in which case the extraditee can only make another application upon a change of circumstances: s 15(3). Or, if bail has been granted because a magistrate has concluded special circumstances exist, that position would ordinarily continue except for a change of circumstances (for example, the extraditing country contends there has been a breach) until the next stage of the proceedings, for example ss 18 or 19, which requires a decision to be made. It would ordinarily continue for such period or periods as may be necessary under this stage of the proceedings.The return to court during this stage does not compel the necessity for a fresh bail application. That a magistrate must make an administrative order at each appearance to further remand the extraditee, does not alter that. Nor, contrary to the respondent’s submission, does the fact that the extraditee is bailed to appear on a particular date. Such an order (which in this matter was that the respondent was remanded on bail to appear on 22 February 2021), is simply to ensure that the extraditee returns to court to enable progress of the proceedings. If on the return to court the matter is adjourned, that can involve a further remand with an order which extends the effect of a decision previously made to grant bail to a further date. The order extending the bail is an administrative device which supports the decision: s 49B of the Extradition Act.

68    There is also no support in the provision, as contended for by the respondent, that absent an application, the magistrate must necessarily consider afresh, whether special circumstances have been established. The respondent’s reliance on the obiter comments of Goldberg J in Cabal (No 2) at [19] which describes that the provision contemplates “[s]uccessive periods of remand”, does not advance his argument to the contrary. That observation was made in relation to s 15(3) and that it operates at each period of remand. That is, where an extraditee has made a bail application and it is refused, a further application can be made if there is evidence of a change of circumstances under s 15(3) at any of the remand occasions. The Court observed that a further application can be made more than once, if circumstances again change during the period commencing on the date the person is arrested and concluding with the s 18 or s 19 determination. The decision says nothing about a person having been released on bail.

69    Fourth, as described above, the Extradition Act provides for a staged process. A construction of s 15 that only allows for an application for bail in specific instances is consistent with the staged process of extradition. For example, if an order is made either under s 18 or s 19 certain consequences follow, which include that the person be committed to prison or released on bail: s 18(2), s 19(9). In each of those circumstances, the magistrate must not release the person on bail “unless there are special circumstances justifying the release”: s 18(3), s 19(9A). As the applicant correctly submitted, whichever is applicable of those stages is when the next operable decision is made where a bail application can be brought (absent a change of circumstances enlivening s 15(3)). I note for completeness that an extraditee is unable to be released on bail following a waiver of extradition pursuant to s 15A.

70    As illustrated by the reasons above, the proper construction of s 15, when considered in context and given its purpose, does not support the respondent’s submission. I do not accept that s 15 requires an extraditee who has been remanded on bail to make a fresh bail application on each occasion the matter is back before a magistrate, and that the magistrate on each occasion decide afresh whether on the material before them, that special circumstances are established and that bail should be granted. The grant of bail (with the decision finding that special circumstances exist justifying it) does not necessarily expire on the attendance before a magistrate on that adjourned date such as requiring a fresh application and decision to be made, unless an operative decision, s 18 or s 19, has been made. It would ordinarily continue, subject to an change of circumstances, for such period or periods as may be necessary under this stage of the proceedings. That said, if the matter is to be further adjourned, administrative orders would need to be made which reflect that further remand, which can involve an extension of the bail already granted.

71    Moreover, the respondent’s construction of s 15 does not advance his case. The construction of s 15 cannot alter what the Magistrate did, as a matter of fact in this case.

72    As is apparent from my finding above, the Magistrate in this case extended the bail granted by the Decision in December 2020 to 25 March 2021. As explained above, there was no fresh application made to her which was considered and no fresh decision to grant Mr Dunne bail. The operative decision is the Decision in December 2020. That there may be an administrative order remanding Mr Dunne on bail to appear on 25 March 2021 does not alter that.

73    If the Decision is quashed, the Bail Extension must necessarily fall away. Even if the Bail Extension is the relevant decision, it would also be infected by jurisdictional error as that was an extension of bail as granted in the original Decision.

74    Although there can be no real dispute that futility is a basis on which a court might exercise its discretion to withhold relief, the respondent’s submission based on futility must fail.

75    Mr Dunne’s reliance on Elmer at [13]-[14] does not assist him. Contrary to his submission, this case is not comparable to the situation in Elmer. That case involved a refusal to allow the transfer of a fishing licence. By the time the appeal came before the Court, the licence and the time period in which the appellant could apply for licence renewal had both expired. The Court concluded that an order setting aside the decision to refuse the transfer of the fishing licence would have achieved nothing. If such relief had been granted and the matter remitted for consideration, the decision-maker would have been called upon to make a decision which, even if theoretically favourable to the appellant, could not have resulted in the appellant becoming the holder of a licence.

76    That is to be contrasted with this case where, if the applicant succeeds in establishing jurisdictional error in relation to the Decision, that decision can be quashed which necessarily effects the Bail Extension, and Mr Dunne would be held in custody until the Magistrate reconsiders the bail application according to law. As explained above, even if the Bail Extension is the operative decision, as the original decision is extended, the result would be the same. It does not matter that at the next mention the s 18 issue may be considered, with the consequences that necessarily flow in respect to Mr Dunne’s bail. As senior counsel for Mr Dunne properly conceded, any bail application he makes under s 18 is now premised on the basis that he has already established special circumstances when granted bail under s 15. That fact would, not surprisingly, be used in support of the s 18 application.

77    I turn now to the judicial review application.

Judicial review application

78    To obtain relief under s 39B of the Judiciary Act 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 (Craig) at 179 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) 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.

79    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”.

80    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]:

[24]. 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.

…

[30]. 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.

81    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.

82    Ireland relies on three jurisdictional errors in the Decision: error of law, unreasonableness; and a denial of procedural fairness. It is appropriate to refer briefly to each basis.

83    In Craig the Court observed at 179:

If [a decision-maker] falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the [decision-maker's] exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the [decision-maker] which reflects it.

84    In Yusuf at [82], referring to Craig, McHugh, Gummow and Hayne JJ held:

“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decisionmaker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.

85    In determining whether an error of law was affected by jurisdictional error, it is not enough to establish that the Court disagrees with the decision, rather, in this context the error must be “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].

86    In respect to the concept of unreasonableness it is appropriate also to refer to the observations in Tsvetnenko at [70], where the Full Court considered that concept 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).

87    In respect to procedural fairness, where a magistrate is exercising power under s 15(2) the magistrate has an obligation to afford procedural fairness: Hellenic Republic v Konstantinou [2010] FCA 708 at [42]. The content of that obligation, as with all administrative decisions, is to be determined “by the particular circumstances (mostly statutory) in which the power is to be exercised or the function performed”: DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 at [100]. Where a decision-maker is to engage in an evaluative decision-making process where they fail to make a finding on “a substantial, clearly articulated argument relying upon established facts”, such a failure may amount to a failure to accord procedural fairness: Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24], [95].

Review Grounds

88    As noted above at [5], the respondent, despite having ample opportunity to do so, has chosen not to advance any submissions addressing the substantive argument as to whether jurisdictional error is established, not even on the basis as an alternative to their primary argument. This does not relieve this Court of its obligation to determine whether the applicant has established the alleged errors.

89    The Magistrate had before her, in addition to the oral submissions made by the parties, written submissions, and from the applicant, the extradition request from Ireland, an affidavit of Toni Burgess dated 21 December 2020 and relevant authorities.

90    As a general observation, and although not relevant to the grounds of review, I note that the respondent did not provide any evidence to the Magistrate to support his circumstances, but rather simply made factual assertions in written submissions. In a context where the respondent bore the onus of establishing special circumstances and the factual assertions included matters which could not be personally known to him, for example, disruption to travel, it would have been expected that evidence be relied on. The absence of evidence is to be contrasted with the manner in which extradition bail applications have proceeded: see for example, Tsvetnenko v United States of America [2019] FCA 206 at [53]; Ghodskani v United States of America [2018] FCA 14 at [22]; Zentai v Republic of Hungary [2008] FCA 1335 at [7].

Ground 1(a): misconstruction of the test of “special circumstances”

Submissions

91    There are two aspects to this ground of review. First, the Magistrate misconstrued the applicable test for ‘special circumstances’ as set out in the decision of Cabal, by asking herself if the respondent’s situation was materially different from others facing extradition as opposed to determining whether the alleged material differences constituted disadvantages that Mr Dunne would endure while in detention. Second, as a result of the misconstruction, the Magistrate took into account irrelevant matters in finding that the respondent met the standard of special circumstances as required by s 15(6).

92    The applicant submitted that for circumstances to be ‘special’ they must be matters which are both (i) different from those faced by extraditees generally, and (ii) must be those which produce disadvantages to be endured by that person. They cannot be matters which are simply issues of character or background, citing Tsvetnenko at [47]. Ireland submitted that after the Magistrate referred inter alia to Cabal, she set out her findings which began “[t]here are many features of the case which are significantly different, I believe, from most cases involving extradition”. It was submitted that the Magistrate was mistaken by simply assessing whether the circumstances relied upon by the respondent were “significantly different” to those encountered by others facing extradition and that she failed to assess whether those circumstances, or “significant differences”, were in the nature of disadvantages the respondent had to endure were he to be held in custody awaiting extradition.

93    Ireland further submitted that although the Decision indicates the Magistrate found there were “many features” of the respondent’s case which were “significantly different” from “most cases involving extradition”, she does not indicate all of the matters that she found to constitute “special circumstances”. Ireland submitted that the only finding appears to relate to delay. To that conclusion, it was submitted that these delays are not disadvantages that the respondent would endure while in extradition custody, and are simply matters of context and background. It was submitted so far as it was said to relate to a possibility of delay in returning to Ireland because of the COVID-19 pandemic, the Magistrate did not consider this from the perspective of it causing disadvantage to the respondent different to others faced with extradition. The consideration was also said to be directed to questions of surrender, which are not relevant to the question of special circumstances.

94    Ireland noted that other matters that may have been relied on by the Magistrate included awareness of the allegations and cooperation with the Garda; the respondent living openly in Australia under his true name, that there had been no attempt to flee; the disruption to international travel caused by COVID-19; the respondent having no criminal record in Ireland, Australia or anywhere else; his family background; that a surety of $1,000,000 was available; and that he was in the process of applying for a travel exemption so he could return to Ireland to care for his elderly mother. Ireland submitted that the respondent’s cooperation with authorities, his lack of criminal history, strong community ties and that there was a substantial surety are not disadvantages Mr Dunne would endure or face while being held in custody.

95    Ireland submitted that by approaching the question of special circumstances in the way the Magistrate did (that is, by considering circumstances, simpliciter, and not by considering whether those circumstances produced disadvantages to be endured by Mr Dunne in custody), the Magistrate took into account circumstances that are incapable of constituting “special circumstances” in the requisite sense and are, as such, irrelevant considerations.

Consideration

96    Ireland’s submission must be accepted.

97    The Magistrate stated:

The threshold which is exposed by this decision is, I accept, a very high one. A page 191 of the same decision, to constitute special circumstances, the matters relied upon and I quote, need to be extraordinary and not factors applicable to all defendants facing extradition, at page 191. The issue for this court at the outset is whether special circumstances exist for Mr Dunne. Counsel for Mr Dunne submits that special circumstances exist in several ways and also as a combination of factors.

98    Her Honour concluded:

Findings. I find that in this particular case, special circumstances do exist. There are many features of the case which are significantly different, I believe, from most cases involving extradition. Chief amongst them is the timing of the disclosures to police – 2014, the voluntary interview of this accused whilst in Ireland at the request of police, the fact that this applicant has not left Ireland at any time without the knowledge implicitly of police either before or after 2014. He surrendered himself to police when asked to do so when he first became aware of the allegations. He was present in Ireland, available for interview when the allegations arose.

99    The description of the test in the highlighted passages in the preceding paragraphs is incorrect. It misstates what is required to be established.

100    In the passage recited above at [48], the High Court in Cabal makes it clear that the question of special circumstances involves, first, that 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; and second, there must be no real risk of flight.

101    As summarised in Tsvetnenko at [16]-[17] recited above at [50], a circumstance or a combination of circumstances must be different in a respect and to a degree that means being remanded in custody will have adverse consequences that would not generally apply to those detained during the course of the extradition process; that they take the case out of the ordinary when it comes to the disadvantages of being remanded in custody during the course of the extradition proceedings; and result in disadvantages of a kind that make the particular instance extraordinary.

102    The Magistrate applied a comparison of circumstances simpliciter with other extraditees. The Magistrate did not consider the question of special circumstances from the perspective of the correct test, focussing on whether it had been established that the respondent’s circumstances were different from the disadvantages that all extradition defendants have to endure. That is plain not only from the description of her approach as illustrated in the passage above, but also because the reasons do not reflect any consideration of that aspect of the test. The Magistrate misconstrued the test. That approach led her to take into account irrelevant matters.

103    This is also apparent by the considerations, as far as can be ascertained, which were or might be said to be regarded by the Magistrate as special circumstances. This is addressed in more detail in ground two which complains specifically of the reasons.

104    As is apparent from the passage recited above, although the Magistrate refers to “many features” of differentiation, with the exception of delay, these are not identified. In that context Ireland correctly characterises the Magistrate’s reasons as only identifying one special circumstance, being delay. After the passage recited above at [97], the Magistrate referred to what was argued by the respondent as a basis on which bail should be granted. However, apart from the findings as to delay, the Magistrate did not make any findings.

105    Moreover, the delay relied upon by the Magistrate appears to relate to a delay in bringing proceedings by the Irish authorities, and the delay in arresting the respondent following the extradition arrest warrant being issued. Neither are disadvantages that the respondent would endure while in extradition custody. A delay in making the request for the respondent’s extradition has not been considered to be a special circumstance: see for example: Taylor v United States of America [2012] FCA 366 at [29]; Republic of Poland v Ginter [2009] FCA 262 at [21].

106    Although the Magistrate observed that she was unsure how the respondent would be transported to Ireland, she did not appear make a finding as to special circumstances on this basis. In any event, possible delay in returning the respondent due to international travel restrictions (which is entirely speculative) would also be faced by all others wanted for extradition. Any delay the respondent would endure in custody would not be different to those disadvantages faced by others awaiting extradition. “[T]hat the extradition proceedings may be lengthy will not constitute special circumstances unless there has been some unusual delay”: Cabal at [55]. The issue of how the respondent might be transported if an extradition request is granted or how long that might take is irrelevant to the issue of bail. Rather, those matters are properly considered at the s 22 stage of proceedings. The Extradition Act provides the procedure, including a two-month limitation period from the date of issue of the surrender warrant for the removal of the person, and the consequences of the failure thereof: see for example, Reyes v United States of America [2020] FCAFC 149.

107    Ireland addressed other matters which it suggests the reasons reflect may have been relied on. The difficulty arises because the reasons do not articulate the basis of the Magistrate’s findings as to special circumstances. Nonetheless, factors referred to, such as cooperation with the Garda and his return trips to Ireland cannot reasonably be viewed as special or different to the circumstances of others facing extradition. Cooperation with police has been considered to be “not unusual”: Taylor at [29], or is “generally applicable to all persons… facing extradition”: O’Donoghue v Republic of Ireland [2009] FCA 394 at [8]. So too, have matters such as the respondent’s lack of criminal history, close family ties and financial interests in Australia, which are attributes that many people facing extradition may possess which were relied on by the respondent as special circumstances.

108    In Taylor, the Court considered whether special circumstances existed. Those relied on were that he had significant business interests in Australia requiring his attention; he had a close knit family; he had scrupulously adhered to previous bail conditions; he had been cooperative with US authorities; and there had been considerable delay between the laying of charges in 2007 and the extradition proceedings in 2011. The Court observed at [29]:

I am not persuaded that any of the factors upon which he relies, either individually or in combination, are in any way “different in kind from the disadvantages that all extradition defendants have to endure” (Cabal at 191). I note Mr Taylor’s contentions in relation to the prospective damage to his business affairs should he remain in custody until review of the decision of the Magistrate, however such unfortunate consequences are potentially applicable to any person seeking bail pending review of a determination of extradition eligibility. I also note Mr Taylor’s close family and friendship bonds in his place of residence, but again these advantages are not unusual in respect of applicants in his position, as is clear from such cases as Barney v United Kingdom, Haddad v Lyon and O’Donoghue v Ireland. The fact that Mr Taylor had co-operated with the US authorities prior to and following the indictment, while potentially testament to his good character, is not unusual or a “special circumstance”: O’Donoghue v Ireland. Finally, the fact that there has been some delay between presentation of the indictment and the commencement of extradition proceedings in these proceedings, while unexplained, does not in my view constitute special circumstances supporting an order for bail …

109    It must be accepted that every case turns on its facts. That said, Taylor reflects an orthodox application of the test applicable to special circumstances.

110    If matters such as those referred to above were relied on as special circumstances, as part of the “many features”, which is likely given the respondent’s reliance on them, it reinforces the conclusion that the Magistrate did not apply the correct test. If it was a combination of features, the reasons do not reflect the consideration required as described in Tsvetnenko at [17].

111    These considerations also demonstrate that the Magistrate’s misconstruction of the statutory test materially affected the exercise of her discretion as it caused her to take into account a number of irrelevant considerations. The error informed her decision to grant bail. As a result of misconstruing the relevant test, the Magistrate found that special circumstances existed, a finding which is a necessary precondition to the grant of bail.

112    Accordingly, the Decision is affected by jurisdictional error.

Ground 1(b): unreasonableness

Submissions

113    Ireland contended that the Decision fails to provide an intelligible justification for the finding that the circumstances relied on by the respondent were, either alone or in combination, special circumstances. It was submitted that the Decision mentions some of the circumstances relied upon at different points, but other than the reference to delay, there is nothing in the Decision that suggests what matters her Honour had regard to in deciding there were special circumstances. Although there was a discussion of some matters, there is no identification of whether they form part of the “many features” of the respondent’s case which she found to be significantly different from most cases involving extradition. It was submitted even if those circumstances were relied upon, there is no analysis as to why these factors were special in Mr Dunne’s case, or, put another way, why Mr Dunne would endure disadvantage other persons facing extradition would not. There is no way of understanding why, in the circumstances of Mr Dunne’s matter, those circumstances were special. It was submitted that if the Magistrate considered certain circumstances, in combination, amounted to special circumstances, there was no analysis as to how the unidentified combination of circumstances satisfied the criteria in Tsvetnenko as to the degree and magnitude of difference. It was therefore said that the Decision does not just contain illogical or irrational reasoning, but the overall character of the Decision is unreasonable. This is because none of the matters relied upon could constitute “special circumstances”. The unreasonable nature of the Decision amounts to jurisdictional error.

Consideration

114    As explained above at [51], in Tsvetnenko at [16]-[17] where a combination of circumstances are relied on to establish special circumstances it is important to consider the precise combination of circumstances advanced in support of the application. It is necessary to evaluate whether those circumstances have been established and then consider whether those that have been established, when taken together, are special in the relevant sense. That did not occur here.

115    As is apparent from the recitation of the applicant’s submission, there is overlap between this and other grounds. It is unnecessary to repeat the matters referred to in the preceding ground. Suffice to say that the lack of any discussion as to what the Magistrate concluded were special circumstances, in a context where only delay was identified despite it being said there were many features, reflects that the Decision does contain illogical or irrational reasoning. In the context of this case, I accept the applicant’s submission that the Decision is unreasonable.

Ground 1(c): the Magistrate misconstrued the test for ‘real risk of flight’

Submissions

116    Ireland contended that the Decision reveals the Magistrate misconstrued the test for flight risk by merely assessing whether the respondent was of stable character, as opposed to engaging in an assessment of the factors that may cause him to be a flight risk such as the possible penalties he was facing in Ireland. Ireland submitted that although the Decision records the Magistrate’s acceptance that, having found special circumstances existed, she was then obliged to take into account flight risk, and whilst the Magistrate identified the authorities of Cabal, Ghodanksi and Green and the requirements set out in those decisions, she did not undertake the analysis required. It was submitted that instead, the Magistrate discussed why she was of the view the respondent was stable and of good character. There is no reference to the risk of flight or an assessment of the issues that may drive a person to flee. By misconstruing the test, the Magistrate made a jurisdictional error.

Consideration

117    The Magistrate, having referred to the relevant authorities, concluded:

I consider ultimately that he is a person who undeniably is of good character, as a person who comes before the court without criminal history prior to or subsequent to the alleged offending or disclosures of 2014. He is a person who could be described as stable. Stable in terms of a long-term marriage, the acquisition of property and also steady and very worthwhile employment. Ultimately, I consider that it is appropriate in this very unusual case to grant bail to this man pending extradition and I intend to proceed to do so.

Now, despite everything that has been told to me from the higher courts and which I’ve considered, I would like to enter into discussion with you all now, about conditions of bail. Could I firstly say that I’m pleased that Miss Murray is available because surety is chief amongst them as is the handing in of both Irish and Australian passports and I’ll certainly speak to you Mr Jeffrie about anything else you may wish to submit and Miss Farrell as well. Thank you.

118    Despite referring to the authorities, the Magistrate does not appear to have considered the question of flight by analysing the matters by reference to the risk of flight or the assessment of issues that may drive a person to flee. Although the history and character of the defendant are relevant, they must be assessed by their relevance to the issue of risk of flight.

119    Although perhaps not as straight forward as the error in respect to the test for special circumstances, I am nonetheless satisfied that the Magistrate misconstrued the test for risk of flight.

Ground 2(a) and (b): inadequacy of reasons

Submissions

120    Ireland contended that the Decision reveals that the Magistrate failed to afford procedural fairness to Ireland in two respects: first, she did not engage in an active intellectual process when considering the matters she was required to take into account; and second, Ireland is unable to tell from a fair reading of the Decision what matters the Magistrate considered were special circumstances.

121    As to the first basis, Ireland submitted that a failure to engage in an active intellectual process was brought about by the Magistrate failing to afford Ireland procedural fairness. Ireland submitted that the question of whether a decision maker has engaged in an active intellectual process is a matter of impression reached in light of all the circumstances of the case, including the tone, structure and content of the decision maker’s reasons. What is required by a court on judicial review is a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the relevant material, citing Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) at [89]; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 366. It was submitted that the Decision does not adequately identify the ‘many features’ of the case that constituted special circumstances and does not show that the Magistrate considered, or engaged with, several key submissions put by Ireland regarding the issue of delay in bringing proceedings and the COVID-19 pandemic. The Decision does not identify the arguments raised by Ireland on those points, or the basis upon which they were rejected. In relation to the Magistrate’s concern regarding the uncertainty in the ability of the respondent to be extradited due to the COVID-19 pandemic, she did not address the evidence relied on by Ireland regarding the extraditions that continued to occur during the pandemic other than to note the existence of some uncertainties. It was submitted that the approach to the delay in bringing proceedings was to simply repeat the submission from the respondent that a delay existed and that he visited Ireland between his interview and being charged. The Magistrate did not engage with the question as to whether they were “special” in the requisite sense to the circumstances other extraditees may face, a point that was squarely made by Ireland.

122    Ireland submitted that the failure to provide procedural fairness in properly identifying and engaging with the submissions advanced by Ireland is material to the decision of the Magistrate, with those matters directly dealing with the key finding regarding delay and special circumstances as well as other factors that were advanced. The failure to apply the necessary intellectual process by engaging with Ireland’s submissions in key aspects of the case denied Ireland procedural fairness, materially affecting the Decision and amounted to jurisdictional error.

123    As to the second aspect, Ireland submitted that where reasons are given the reasons should identify the issues central to the exercise of power, citing Yusuf at [31], [74]; at [55]. As to the application of the principle to the Extradition Act, Ireland cited Liem at [126]. Ireland accepted that the decision was made in the context of a busy Court which was dealing with an array of matters that were expected to be dealt with quickly and efficiently. It submitted nonetheless, the Decision does not provide Ireland with a reasoned explanation as to why the Magistrate made the decision she did. The inability to discern from the Decision the Magistrate’s reasons denied Ireland procedural fairness to be informed of the issues central to the Magistrate’s exercise of power to remand Mr Dunne on bail.

Consideration

124    Given that the applicant has established jurisdictional error in relation to the proceeding grounds it is unnecessary to decide this ground. In particular it is unnecessary to decide if the matters relied on amount to a denial of procedural fairness in this case. I do however make two observations.

125    First, in practical terms, the difficulty that arises from the Magistrate’s reasons is evident from a consideration of the preceding grounds. Put simply, it cannot be discerned from the reasons what matters, singularly or in combination, satisfied the Magistrate that special circumstances existed. Although the Magistrate identified delay, this was only one of “many features” that she concluded were different about Mr Dunne’s case. It is speculative as to what those other features are, and what role they had in the finding. If a combination of features were relied on it was necessary to explain why the combination amounted to special circumstances.

126    Second, the quality of the reasons necessarily affects the ability to assess whether there has been a failure to intellectually engage with the issues. This is also necessarily affected by the conclusion that the Magistrate applied the incorrect test in relation to special circumstances, and flight. What is plain, is that the Decision does not refer to Ireland’s submissions on important topics. To take an obvious example, the submission regarding the issue of delay in bringing proceedings and the COVID-19 pandemic. The Decision refers to the respondent’s submission and does not identify the arguments raised by Ireland. The only evidence before the Court as to any delay as a consequence of the COVID-19 pandemic was provided by Ireland. Yet that evidence was not referred to, but rather the Magistrate expressed concern about the uncertainty in the ability of the respondent to be extradited due to the COVID-19 pandemic.

Conclusion

127    For the reasons above, the applicant has established jurisdictional error in relation to the Decision. This is the operative decision the basis of the Bail Extension. I note that even if the Bail Extension is the relevant decision, it would also be infected by jurisdictional error as that was an extension of the original Decision. The orders sought by the applicant are on the basis of those made in United Kingdom v Forsyth (No 3) [2003] FCA 1097.

Associate:

Dated:    19 March 2021