Federal Court of Australia

Rivas v Minister for Finance [2026] FCA 388

ORDERS

THE COURT ORDERS THAT:

1.    The originating application is dismissed with costs.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION AND THE TWO GROUNDS

1    This proceeding seeking prerogative and associated relief is brought under s 39B of the Judiciary Act 1903 (Cth) and concerns a challenge to a decision of the first respondent (Minister) to surrender the applicant, Ms Adriana Rivas, to the Republic of Chile pursuant to the Extradition Act 1988 (Cth) (Act).

2    The impugned decision represents the final step in a statutory process which had earlier resulted in the applicant being found eligible for surrender under s 19 of the Act, that conclusion having been upheld on review and appeal, including by the Full Court in Rivas v Republic of Chile [2021] FCAFC 214. The present application, of course, is directed not to the correctness of that anterior determination, but to the legality of the Minister’s decision.

3    It was agreed by counsel for the applicant during the hearing that the following two alternative grounds of jurisdictional error represent the metes and bounds of the case presented by the applicant (T22.1–T23.29):

(1)    First, the Minister failed to appreciate that the extradition offence, properly characterised on a correct construction of the Treaty on Extradition between Australia and the Republic of Chile [1996] ATS 7 (Treaty), was one of a crime against humanity (specifically, a crime against humanity involving kidnapping); the Minister wrongly assumed that the extradition offence was kidnapping or aggravated kidnapping for the purposes of applying, inter alia, Art II(4) of the Treaty; and this amounted to an error of law. Relatedly, once the extradition offence is properly characterised, the Minister’s satisfaction under s 22(3)(e)(iii) of the Act in relation to Art II(4)(a) of the Treaty was legally unreasonable. In short, under Art II(4)(a) of the Treaty, extradition may be granted provided that the offence for which extradition is requested was an offence in both Chile and Australia at the time the alleged acts or omissions constituting the offence took place (relevantly, in or about May and December 1976). If “the offence for which extradition is requested” within the meaning of Art II(4)(a) of the Treaty is (in each case) the offence of crimes against humanity, and not simply kidnapping or aggravated kidnapping, then a precondition to surrender under the Treaty cannot be met, as the offence of crimes against humanity was not an offence existing under the criminal laws of Chile or Australia at the time of their alleged commission. Further, Art IV(5) of the Treaty provides that extradition shall not be granted when the person sought cannot be prosecuted or convicted by reason of any limitation imposed by the law of either Contracting State. The basis upon which the limitation period (which would otherwise apply in the case of aggravated kidnapping) is stated not to apply, is because the offence for which extradition is requested is the offence of crimes against humanity. In that context, it “belies belief” to assert it is not the offence for which extradition is sought. I will describe this as the Characterisation and Unreasonableness Ground.

(2)    Secondly, if the first ground fails (because the offence for which extradition is sought is aggravated kidnapping), the Minister failed to consider a relevant consideration in exercising her discretion to determine surrender under ss 22(2) and 22(3)(e)-(f) of the Act being the risk that Chile would breach its specialty obligations under Art XVIII of the Treaty. The Treaty provides for specialty obligations which are distinct from, and impose a higher standard, than those in s 22(4)(d) of the Act and the material contained in the extradition request demonstrates that the conduct alleged is and will be subject to categorisation as “crimes against humanity”, with substantive effects on sentence and the application of limitation periods. Further, the material establishes a significant risk that the applicant would, contrary to Art XVIII of the Treaty, be “prosecuted or sentenced” for an offence other than the extradition offence in the process of prosecution and sentencing (that is, she would be prosecuted or sentenced on the basis she committed “crimes against humanity”). I will describe this as the Relevant Consideration Ground.

4    For reasons I will explain, the way these grounds are expressed by the applicant tends to overcomplicate the determinative issue in the case.

B     HISTORICAL CONTEXT AND THE ALLEGATIONS

5    The extradition request arises out of events said to have occurred in Chile in 1976 and 1977 during a period of military government following the assumption of power in 1973 by a junta, which included General Augusto Pinochet representing the Army (and who became President the following year). That period has been the subject of extensive historical and legal examination, both within Chile and internationally, and it is neither necessary nor appropriate to give any comprehensive account of it here.

6    It suffices to observe that it was a period in which the institutions of the Chilean state operated under a markedly different constitutional and political order from that which now obtains. It may also be observed, consistently with the materials to which reference was made in submissions, that the legal and institutional legacy of that period has given rise to ongoing processes of judicial decision making within Chile, including investigations and prosecutions concerning conduct said to have occurred during that time, and that those processes necessarily take place within a legal system which has changed significantly since 1990.

7    As detailed below, the allegations against the applicant concern her alleged involvement in the detention and disappearance of several individuals during that period. The materials provided in support of the extradition request describe the applicant as having participated in activities at a facility associated with state security operations, and as having been involved, in concert with others, in conduct said to constitute aggravated kidnapping under Chilean law.

8    Given this case has attracted some interest in the Chilean community, it is well to stress that it is, of course, unnecessary to express any view as to the underlying truth of these allegations. The extradition process does not involve any determination of guilt or innocence. The allegations are to be taken as they are presented for the purposes of the statutory inquiry. That position reflects a fundamental feature of the statutory scheme, which proceeds on the footing that questions as to the truth of the allegations, the availability of defences, and the ultimate disposition of the charges are matters for the courts of the requesting State, Chile, and not for determination during extradition proceedings in this jurisdiction (or a judicial review proceeding relating to a Minister’s decision).

C     CHRONOLOGY AND PROCEDURAL HISTORY

9    The chronology of events and procedural history leading to the present application are extensive.

10    Chile alleges that, in 1974, the applicant joined the Dirección Nacional de Inteligencia (DINA) and became an active member of an operational group known as Brigada Lautaro. It is alleged that DINA operated covertly as part of a state apparatus engaged in the detention, torture and disappearance of political opponents, including members of the Chilean Communist Party, and that Brigada Lautaro participated in such activities. Chile alleges that, in that capacity, the applicant was involved in a series of arrests in 1976.

11    On 12 May 1976, she and other DINA agents are said to have located and arrested Víctor Manuel Díaz López, then Undersecretary General of the Communist Party of Chile, who was thereafter detained and held in confinement until the first fortnight of January 1977. It is further alleged that on 13 and 15 December 1976, the applicant and others arrested Fernando Alfredo Navarro Allendes, Lincoyán Yalú Berríos Cataldo, Horacio Cepeda Marinkovic, Juan Fernando Ortiz Letelier, Héctor Veliz Ramírez, and Reinalda del Carmen Pereira Plaza. Each of those individuals is alleged to have been detained, kept in confinement, and to have subsequently disappeared following their detentions.

12    On 6 August 2018, Australia received a request from Chile for the applicant’s extradition. The request was made in respect of seven counts of aggravated kidnapping, contrary to Article 141 No. 3 of the Criminal Code (Chile), and was accompanied by a statement of conduct and supporting material describing the alleged role of the applicant in the conduct said to constitute those offences.

13    On 26 October 2018, the then Attorney-General issued a notice pursuant to s 16(1) of the Act acknowledging receipt of the request. On 5 December 2018, a magistrate issued an extradition arrest warrant, and on 19 February 2019 the applicant was arrested in New South Wales and remanded in extradition custody. What then followed included unsuccessful applications for bail and judicial review of bail determinations.

14    On 16 June, 15 July and 29 September 2020, a magistrate in New South Wales conducted proceedings under s 19 of the Act to determine whether the applicant was eligible for surrender to Chile. On 29 October 2020, the magistrate determined that the applicant was eligible, being satisfied that the statutory criteria were met and that no extradition objection had been established.

15    The applicant sought review of that determination, under s 21 of the Act. A judge of this Court dismissed that application on 24 June 2021. A subsequent appeal to the Full Court was also dismissed, and an application for special leave to appeal to the High Court was later deemed abandoned on 9 May 2022.

16    Those events confirmed the correctness of the approach taken at the eligibility stage and the matter then proceeded to the executive government.

17    On 10 May 2022, the Attorney-General’s Department (Department) invited submissions from the applicant as to why she should not be surrendered and as to any other relevant matters bearing upon the exercise of the Minister’s discretion.

18    On 6 July 2022, the Attorney-General authorised the Minister to act on his behalf in relation to the decision. Thereafter, the Department received submissions from members of the public and the applicant. On 13 September 2022, the Department wrote to Ms Rivas, inviting her to respond to the matters raised. After providing her first set of submissions (which were not ultimately relied upon), the applicant provided two further sets of submissions (medical and non-medical submissions) on 14 July and 2 August 2023.

19    After 2 August 2023, the Department obtained country information about Chile from several international sources, and engaged in an exchange of correspondence with Chile between September 2023 and June 2024. Further information was sought and obtained in response to matters raised in the applicant’s representations, and additional material was received from the Department of Foreign Affairs and Trade.

20    On 25 July 2024, officers of the Department provided a submission and recommendation to the Minister. On 28 August 2024, the Minister determined, pursuant to s 22(2) of the Act, that the applicant be surrendered to Chile and issued a surrender warrant pursuant to s 23 of the Act.

21    On 27 September 2024, the applicant commenced the present proceeding seeking judicial review of that determination and the issuance of the associated surrender warrant.

D    THE STRUCTURE OF THE ACT AND THE MINISTER’S FUNCTION

22    The Act establishes a staged process which reflects a deliberate allocation of functions. At the eligibility stage, the magistrate or judge determines whether the statutory criteria in s 19 are satisfied. That task is confined and does not involve any adjudication upon guilt or innocence nor any assessment of the strength of the case against the person for which surrender is sought (see s 19(2) and (5)).

23    The confined nature of the task at the eligibility stage is relevant in understanding the overall statutory scheme. The scheme reflects a legislative choice to respect the role of the courts of the requesting State as the proper forum for the determination of criminal liability.

24    Under s 22(2) of the Act, the Attorney-General (who, it will be recalled, in this case, authorised the Minister to act on his behalf) must determine whether an eligible person is to be surrendered. For the purposes of s 22(2), the eligible person is only to be surrendered if: (a) the Attorney-General is satisfied that there is no extradition objection; (b) the Attorney-General does not have substantial grounds for believing that, if the person were surrendered, the person would be in danger of being subjected to torture; (c) where the offence is punishable by a penalty of death, one of three specified circumstances is established; (d) the extradition country concerned has given a speciality assurance; (e) where, because of s 11, the Act applies in relation to the extradition country subject to a limitation, condition, qualification, or exception that has the effect that surrender of the person in relation to the effect shall or may be refused, in circumstances where surrender shall be refused, the Attorney-General is satisfied that the circumstances do not exist, and in circumstances where surrender may be refused, the Attorney-General is satisfied that either the circumstances do not exist or that they do but that nevertheless surrender should not be refused (see s 22(3)); and (f) the Attorney-General, in the exercise of their discretion, considers that the person should be surrendered.

25    Under reg 4 of the Extradition (Republic of Chile) Regulations 1995 (Cth), which were made under s 11 of the Act, the Act applies to Chile subject to the Treaty. I will come below to the important aspects of the Treaty.

26    When the Attorney-General determines whether the person is to be surrendered, that function is conditioned by the prior determination of eligibility and is directed to the exercise of a statutory discretion in accordance with the Act. It is not a rehearing of the s 19 determination, nor is it an occasion for the Attorney-General to undertake a de novo evaluation of the matters considered at that stage. The Attorney-General is entitled to proceed on the basis that the statutory preconditions to surrender have been satisfied, subject to the outcome of any review or appeal, and the function at this stage is to determine whether surrender should be effected. That determination is made within the confines of the Act.

27    The Attorney-General’s function involves the exercise of an executive discretion informed by the statutory framework and by considerations of an administrative character. The Attorney General’s task is to consider the material provided and to exercise the statutory power in accordance with the Act, having regard to those matters which the Act makes relevant.

28    The distinction between an executive decision of this kind and a judicial determination reflects the different institutional roles of the decision makers and the limits of the power conferred. As the Attorney-General is not required to resolve contested issues beyond those which are necessary to the exercise of the statutory power, the weight to be given to particular matters, within the confines of the statutory task, is a matter for the Attorney-General, subject only to the limits imposed by the requirement to act within jurisdiction. The Court’s role is not to reweigh those considerations, but to ensure that the decision has been made according to law.

29    These principles confine the matters which can give rise to jurisdictional error in the Minister’s decision in the present case. It is necessary to identify a failure to comply with the statutory task, and the alleged failures are confined to the two grounds identified above.

30    It follows that, unless such an error is demonstrated, the fact that the decision might be said to be open to criticism on other grounds does not warrant intervention.

E     THE MATERIAL PROVISIONS OF THE TREATY

31    Before dealing with the applicant’s arguments concerning both grounds, it is worth setting out the material provisions of the Treaty. The following provisions are of central importance:

II

Extraditable offences

…

4.     Extradition may be granted pursuant to the provisions of this Treaty provided that:

(a)     the offence for which extradition is requested was an offence in both Contracting States at the time the acts or omissions constituting the offence took place, and

(b)     it was an offence in both Contracting States at the time the request for extradition is submitted.

    …

IV

Exceptions to extradition

Extradition shall not be granted:

…

5.     When the person sought cannot be prosecuted or convicted by reason of any limitation, including the lapse of time, imposed by the law of either Contracting State.

…

IX

Extradition proceedings and documents requested

1.    The request for extradition and for the seizure of property related to the offence shall be submitted in writing and shall be communicated by diplomatic means.

2.    The extradition request shall be accompanied by:

    …

(d)     in all cases, a statement of the relevant law creating the offence, including any provision relating to the limitation of proceedings such as proceedings which are barred by time, and a statement of the penalty that can be imposed for the offence…

    …

XVIII

Principle of specialty

No person extradited in accordance with the provisions of this Treaty shall be arrested, prosecuted or sentenced in the territory of the Requesting State for an offence committed before the date of the extradition request other than the offence for which the extradition was granted, unless:

(a)     the person surrendered, having had the opportunity to leave voluntarily the territory of the State to which he or she was surrendered, remains there for more than thirty days or returns to it after having departed from it; or

(b)     the Requested State so consents. A request for the consent of the Requested State under this Article shall be accompanied by the documents stipulated in Article IX and, if applicable, any additional information it may have for the purpose of correcting omissions or deficiencies in the documentation.

32    By reference to the facts of this case, it was accepted as common ground that the inquiry to which Art II(4)(a) of the Treaty directs attention is not whether the acts particularised in the extradition request were capable of giving rise to any form of criminal liability under the laws of Chile in 1976 and 1977 (being the time at which they were alleged to be committed), but whether, as at that time, those acts constituted the offence for which extradition is sought, that is, aggravated kidnapping (T45.1–45.26). Indeed, I made that observation about the relevant inquiry following what their Honours said about the equivalent article of the Treaty on Extradition between Australia and the Republic of Hungary in Minister for Home Affairs v Zentai [2012] HCA 28; (2012) 246 CLR 213 (at 242–243 [72] per Gummow, Crennan, Kiefel and Bell JJ).

f    THE CHARACTERISATION AND UNREASONABLENESS GROUND

F.1    The Applicant’s Argument

33    The applicant relies upon the terms of the supporting information accompanying the extradition request, including the statements of the prosecution’s foundational facts. Those materials state expressly that “the criminal action is not subject to the statute of limitations because the offence perpetrated is a crime against humanity”, and that the conduct occurred within a context of “serious, massive and systematic” violations of human rights carried out by State agents. The materials describe the victims as part of a general policy of exclusion, coercion, persecution and extermination, and identify the conduct as falling within a universal legal definition of crimes against humanity.

34    The applicant emphasises that this is not merely descriptive or contextual language but that it reflects the legal basis upon which the prosecution proceeds. That contention is reinforced by further material in the extradition request, including statements attributed to the judicial prosecutor of the Supreme Court, which assert that the criminal action is not subject to limitation because it is a crime against humanity, and that Chilean courts have investigated and classified the offence within that framework.

35    The submissions further rely upon the statement provided pursuant to Art IX(2)(d) of the Treaty, which states that, in all cases, a statement of the relevant law creating the offence, including any provision relating to the limitation of proceedings such as proceedings which are barred by time, and a statement of the penalty that can be imposed for the offence.

36    The applicant relies on the supporting information which states, inter alia, that the criminal action is not subject to the statute of limitations because the offence perpetrated is a crime against humanity, and pursuant to international treaties subscribed by Chile, such crimes are not subject to the statute of limitations. Those materials are said to demonstrate that the non-applicability of limitation periods is not incidental, but depends upon, and is justified by, the characterisation of the offence as a crime against humanity.

37    The applicant also points to judicial material from Chilean courts, including a decision of the Court of Appeals of Santiago, which characterises the relevant conduct as violations of human rights carried out by State agents, and which treats such conduct as constituting crimes against humanity. That decision is said to demonstrate the “shifting meaning” of “crimes against humanity” by reference to international law and to identify the crimes as involving conduct committed as part of a general or systematic attack against a civilian population.

38    It is submitted that this body of material demonstrates that the characterisation is not merely a different label for the offence or an additional description, but is an essential element of the prosecution. It is said that, under Chilean law, the prosecution must establish that the conduct possesses that character to avoid the operation of limitation periods and to sustain criminal liability. In that sense, it is said that the offence is not merely kidnapping which happens to qualify as a crime against humanity, but properly is to be characterised as a crime against humanity constituted by acts of kidnapping.

39    This has substantive legal consequences. The classification of the conduct as a crime against humanity is said to expand criminal liability by removing any statutory time limit for prosecution and by altering the framework within which punishment is imposed. It is therefore said to be a matter of substance, not form, and one which cannot be disregarded for the purposes of the Treaty.

40    On that footing, it is submitted that the offence for which extradition is requested must be characterised, for the purposes of Art II(4)(a), as a crime against humanity involving kidnapping. The consequence of that characterisation, it is said, is that the requirements of Art II(4)(a) cannot be satisfied. It will be recalled that provision requires that the offence be an offence in both Contracting States at the time the alleged acts or omissions took place. It is not in dispute that, in 1976, there was no offence of crimes against humanity under the criminal law of either Chile or Australia, and, in that context, that the requirement of dual criminality and non-retrospectivity is therefore not met.

41    The submissions reinforce this conclusion by reference to Art IV(5) of the Treaty, which provides that extradition shall not be granted when the person sought cannot be prosecuted or convicted by reason of any limitation imposed by the law of either Contracting State. It is said that, on the material contained in the extradition request, the limitation period which would otherwise apply to aggravated kidnapping is avoided only because the offence is characterised as a crime against humanity and that absent that characterisation, criminal liability would be extinguished.

42    The applicant contends that this gives rise to a fundamental inconsistency. On the one hand, the requesting State relies upon the characterisation of the offence as a crime against humanity to avoid the operation of limitation periods. On the other hand, it is said to proceed on the basis that the offence is one of aggravated kidnapping for the purposes of satisfying the requirements of the Treaty. It is submitted that these positions cannot be reconciled.

43    The matter is put in this way: if the legal framework were to provide for two distinct offences, one of kidnapping subject to a limitation period, and another of a crime against humanity involving kidnapping not subject to limitation, it would be evident that they are different offences. It is submitted that, in substance, that is the position which emerges from the extradition materials, and that the question of characterisation must be approached accordingly.

44    It is then said that the Minister erred by proceeding on the basis that the relevant offence was aggravated kidnapping and thereby asked herself the wrong question under Art II(4)(a); the departmental brief (Attachment A) consistently proceeded on that assumption; and that the Minister’s adoption of the brief gives rise to the inference that she adopted the same erroneous view. The failure to appreciate the correct characterisation of the offence apparently led the Minister to apply the Treaty by reference to the wrong legal premise.

45    Finally, it is submitted that, even if the Minister did not err in that way, the decision is affected by legal unreasonableness. Once it is accepted that the relevant offence is a crime against humanity involving kidnapping, it is said there was no basis upon which the Minister could be satisfied that the requirements of Art II(4)(a) were met, given that no such offence existed in either jurisdiction at the relevant time.

F.2    Consideration

46    Although somewhat obscured in the written submissions of both parties, it became clear during oral submissions that this ground turns upon the proper characterisation of “the offence for which extradition is requested” within the meaning of Art II(4)(a) of the Treaty. The critical issue is whether the offence in this case can properly be said to be aggravated kidnapping simpliciter, or whether it is an integral part of the definition of that offence that it occurred as part of, and constituted, a crime against humanity.

47    The logical starting point is the departmental submission to the Minister dated 25 July 2024, which comprises Exhibit A. Although presented in a somewhat unwieldy form, its structure can be readily discerned.

48    The formal request for extradition made by Chile appears at pp 667–689 of Exhibit A. That document is accompanied by a substantial body of supporting material, selected passages of which were relied upon by the applicant.

49    The material annexed includes: official correspondence between Chilean judicial and executive authorities; resolutions and reports of the Supreme Court of Chile and the Court of Appeals of Santiago; indictments issued in 2007 and 2009; arrest warrants; extracts from the Chilean Criminal Code and Code of Criminal Procedure; judicial decisions and replacement sentences; police reports and witness statements; and further resolutions and summaries concerning the status of the proceedings.

50    The request itself is structured in a conventional manner and includes sections identifying the person sought, the documents authorising apprehension, the offences for which extradition is sought, the applicable penalties, the relevant legal provisions, the asserted non-applicability of limitation periods, and summaries of the alleged conduct and procedural history.

51    One matter which is immediately apparent from the request is the way in which the offences are identified. At p 671 of Exhibit A, under the heading “Offences for which the extradition of Adriana Elcira Rivas Gonzalez is sought”, the request states:

The extradition of Adriana Elcira Rivas Gonzalez to the Republic of Chile is sought for the following offences:

7.1    Aggravated kidnapping of the victim named Víctor Manuel Díaz López, in her capacity as co-perpetrator, related with an indictment issued in case roll No. 2,182.98, Conferencia 1.

7.2    Aggravated kidnapping of the victims named Fernando Alfredo Navarro Allendes, Lincoyán Yalú Berríos Cataldo, Horacio Cepeda Marinkovic, Juan Fernando Ortiz Letelier, Héctor Veliz Ramírez and Reinalda del Carmen Pereira Plaza, in her capacity as co-perpetrator, related with an indictment issued in case roll No. 2,182.98, Conferencia 2 and Conferencia 2 Episodio Reinalda Pereira.

52    The request then sets out the applicable penalties for those offences, including:

8    … a penalty that may be issued by the judge, at his/her sole discretion, ranging between 5 years and 1 day and 20 years …

… a single penalty … between 10 years and 1 day and simple life imprisonment.

53    The identity of the extradition offence is reflected consistently in the accompanying judicial materials. The arrest warrant issued on 4 January 2018 (pp 423–424 of Exhibit A) records that the applicant “has been indicted for the offence of aggravated kidnapping” in relation to the named victims. The earlier arrest warrant dated 26 April 2016 (pp 425–426) similarly identifies the relevant offence as aggravated kidnapping in respect of Reinalda del Carmen Pereira Plaza.

54    The indictments themselves proceed on the same footing. The material records that the applicant was indicted by the Court of Appeals of Santiago on 3 February 2007 and was the subject of a further indictment issued on 31 August 2009, in each case as a co-perpetrator of offences described as “aggravated kidnapping” in connexion with the proceedings known as “Conferencia 1” and “Conferencia 2”.

55    The supporting material refers to the existence of “well-grounded evidence” said to establish the involvement of the applicant and others, in that capacity, in the aggravated kidnapping of Víctor Manuel Díaz López and other named victims during the period between May 1976 and early 1977. The later indictment likewise identifies multiple accused, including the applicant, “as the co-perpetrators of the offence of aggravated kidnapping” of the victims named in those proceedings.

56    Taken together, these materials disclose a consistent and repeated identification, across the extradition request, the arrest warrants, and the indictments, of the relevant offending as aggravated kidnapping, expressed in orthodox terms of criminal liability and linked to specific victims, indictments, and case roll numbers within the Chilean criminal process.

57    The applicant’s reliance upon selected parts of the extradition materials, including the supporting background report emanating from the Supreme Court of Chile, to contend that the relevant offence is properly to be characterised as a crime against humanity is, with respect, misconceived.

58    It is tolerably clear from those extracts and the materials generally that references to crimes against humanity arise in a different and distinct sense. They reflect the evaluation or classification, for the purposes of Chilean domestic law, of the factual circumstances in which the alleged conduct occurred and the legal consequences which then follow, including in relation to limitation periods and the way the offences are to be prosecuted and, if conviction results, punished. Thus, the supporting material explains that the conduct is not subject to the ordinary limitation period of 15 years because it is treated, within Chilean jurisprudence, as falling within the category of crimes against humanity, and refers to the approach of Chilean courts and applicable international obligations in that regard.

59    However, read fairly, the materials do not suggest that the offence for which extradition is sought is anything other than the offence identified throughout the request and the accompanying documents, namely aggravated kidnapping. The references to crimes against humanity do not alter the juridical character of the offence for which surrender is sought; rather, they provide context for the operation of Chilean law in relation to that offence.

60    This distinction is critical. The statutory and treaty framework proceeds upon the identification of the extradition offence by reference to the offence described in the request. The fact that the same conduct may, under the law of the requesting State, be regarded as occurring in circumstances which justify its classification as a crime against humanity does not transmute the extradition offence into a different offence, nor does it require the Minister to proceed upon that footing.

61    Once that is appreciated, the applicant’s characterisation argument falls away. It depends upon treating the contextual classification of the conduct as determinative of the identity of the extradition offence, when the materials themselves demonstrate otherwise. The identification of that offence in the request, the indictments, and the arrest warrants is reinforced by the assurances given as to the conduct of the prosecution upon surrender.

62    Further, the extradition scheme proceeds upon the footing that questions as to the application of foreign law, including the consequences which flow from the characterisation of conduct under that law, are matters for the courts of the requesting State. The function of the Attorney-General, or in this case, the Minister, is not to resolve such questions, nor to engage in an anticipatory assessment of how the requesting State will apply its own law during prosecution or sentencing.

63    In these circumstances, the submission that the Minister asked herself the wrong question cannot be accepted. The material before the Minister, including the departmental brief, proceeded on the basis that the relevant offences were those of aggravated kidnapping. That reflected the proper application of the Treaty and the principle of double criminality.

64    There was no error of law in the Minister proceeding on the basis that the extradition offence was aggravated kidnapping.

65    The alternative contention of legal unreasonableness fares no better. It depends upon the same premise, namely that the relevant offence must be characterised as a crime against humanity. Once that premise is rejected, the allegation of unreasonableness falls away. The Minister’s satisfaction under s 22(3)(e) of the Act was formed consistently with the established meaning and operation of the principle of double criminality and was one which was reasonably open on the material before her.

66    The applicant’s reliance upon Art II(4)(a) of the Treaty is misplaced. That provision requires that “the offence for which extradition is requested” be an offence under the law of both Contracting States at the time of the alleged conduct. Once it is recognised that the relevant offence is aggravated kidnapping, that requirement is satisfied. The applicant’s argument depends upon wrongly substituting a different offence.

67    It follows that the Characterisation and Unreasonableness Ground is not made out.

G    The Relevant Consideration Ground

G.1    The Applicant’s Argument

68    The second ground is advanced in the alternative.

69    It proceeds on the premise that, if (contrary to the applicant’s primary case) the extradition offence is properly characterised as aggravated kidnapping, the Minister nevertheless failed to take into account a mandatory relevant consideration, namely the risk of a breach by Chile of the principle of specialty in Art XVIII of the Treaty.

70    The submission is that the material accompanying the extradition request demonstrates that the prosecution in Chile proceeds upon the footing that the conduct occurred in a context amounting to crimes against humanity and that this characterisation is operative, not merely descriptive. It is said to have substantive consequences, including the non-application of limitation periods and consequences bearing upon punishment. From this, the applicant contends that there is a “real risk” that, although extradited for aggravated kidnapping, she will in substance be prosecuted or sentenced on a different juridical basis, being crimes against humanity.

71    On that basis, it is submitted that Art XVIII of the Treaty is engaged in a substantive, rather than merely formal, sense, and that the Minister was bound to consider whether surrender would expose the applicant to prosecution or sentencing for an offence other than that for which extradition was granted. The failure to address that asserted risk is said to constitute a failure to consider a mandatory relevant consideration in the exercise of the power under s 22 of the Act.

G.2    Consideration

72    This ground should also be rejected. Although framed as an alternative, and notwithstanding it is conceptually distinct, it depends upon substantially the same misconception which underpins the first ground.

73    The premise of the argument in the present context is that the references in the extradition materials to crimes against humanity disclose a real prospect that the applicant will be dealt with for an offence other than that for which extradition is sought. That premise is not borne out by the material. As explained above, the request, indictments and arrest warrants consistently identify the relevant offences as aggravated kidnapping. The references to crimes against humanity are references to the context in which the conduct is said to have occurred and the consequences which Chilean law attaches to that context, including in relation to limitation.

74    Once that is appreciated, the applicant’s reliance upon Art XVIII of the Treaty cannot be sustained. The article is directed to the familiar protection that a surrendered person is not to be prosecuted or sentenced for some other offence. It does not require the Minister to embark upon an anticipatory inquiry into how the courts of the requesting State may characterise the surrounding circumstances of the offending, or what consequences may follow under that State’s law upon conviction for the offence for which extradition is granted. To construe it in that way would be inconsistent with the structure of the Act.

75    The applicant’s submission elides the identity of the offence with the consequences which the requesting State’s law may attach to its prosecution. The fact that Chilean law may treat aggravated kidnapping, when committed in particular circumstances, as not subject to limitation, or as attracting particular sentencing consequences, does not mean that the applicant will thereby be prosecuted or sentenced for a different offence. The offence remains the same.

76    Further, the material does not disclose any basis for concluding that Chile seeks to prosecute the applicant for anything other than aggravated kidnapping, or that it proposes to proceed upon some different charge after surrender. In the absence of such material, there is no foundation for the asserted risk of a breach of specialty.

77    The applicant’s case stressed that Art XVIII of the Treaty is broader than the domestic speciality protection in s 22(4)(d) of the Act. The difficulty for the applicant is that even accepting that Art XVIII of the Treaty is broader than s 22(4)(d) of the Act, that difference does not assist on the facts of this case, because the offence remains aggravated kidnapping and the material discloses no real prospect of prosecution or sentence for some different offence.

78    For these reasons, the matter relied upon by the applicant does not constitute a mandatory relevant consideration of the kind asserted. Once it is recognised that the offence for which extradition is sought is aggravated kidnapping, there is no separate obligation on the Minister to treat the possibility identified by the applicant as a distinct consideration bearing upon the exercise of the power under s 22 of the Act.

79    It follows that the Relevant Consideration Ground is not made out.

H    CONCLUSION AND ORDERS

80    Although the written submissions filed on behalf of the applicant ranged more widely, and at times took on something of a freewheeling quality, the case ultimately advanced was expressly confined. As recorded earlier, the applicant relied upon the two alternative grounds I have dealt with above.

81    The applicant has failed to demonstrate that the Minister’s decision was affected by jurisdictional error. The application must therefore be dismissed.

82    There is no reason to depart from the usual order as to costs. The applicant must pay the respondents’ costs of the proceeding.

Associate:

Dated: 7 April 2026