Chan v Minister for Justice and Customs [2001] FCA 170 (2 March 2001)

Last Updated: 20 March 2001

FEDERAL COURT OF AUSTRALIA

Chan v Minister for Justice and Customs [2001] FCA 170

PRACTICE AND PROCEDURE - interlocutory application - proceedings seeking judicial review of the respondent's decision pursuant to s 22(2) of the Extradition Act 1988 (Cth) that the applicant is to be surrendered to the Hong Kong Special Administrative Region - whether the Court is empowered to make an interlocutory order releasing the applicant from custody pending the finalisation of proceeding

Extradition Act 1988 (Cth) ss 19, 22, 23(2), 23(5), 26(6)

Judiciary Act 1903 (Cth) s 39B

Federal Court of Australia Act 1976 (Cth) s 23

Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 followed

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at [35] referred to

Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 at [41]- [42] referred to

Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 distinguished

Betkhoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 470; (1999) 92 FCR 504 distinguished

Peniche v Vanstone [1999] FCA 1688; (1999) 96 FCR 38 followed

ALLAN CHAN v MINISTER FOR JUSTICE AND CUSTOMS

N 90 of 2001

STONE J

2 MARCH 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 90 OF 2001

BETWEEN:	ALLAN CHAN APPLICANT
AND:	MINISTER FOR JUSTICE AND CUSTOMS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	2 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The execution of the s 23 surrender warrant issued on 10 July 2001 be stayed pending the finalisation of this proceeding.

2. An interlocutory order releasing the applicant from custody pending the finalisation of these proceedings be refused.

3. Costs be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 90 OF 2001

BETWEEN:	ALLAN CHAN APPLICANT
AND:	MINISTER FOR JUSTICE AND CUSTOMS RESPONDENT

JUDGE:	STONE J
DATE:	2 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 In April 1999, the Hong Kong Department of Justice requested the Australian Government to issue a provisional warrant for the arrest of the applicant, Mr Allan Chan, an Australian citizen, in connection with alleged criminal offences said to have been committed in Hong Kong. In October 1999, a Local Court Magistrate determined, pursuant to s 19 of the Extradition Act 1988 (Cth) ("Act"), that Mr Chan was eligible for surrender to the Hong Kong authorities in respect of the alleged offences. On 10 January 2001, the Minister for Justice and Customs ("Minister") determined under s 22(2) of the Act that Mr Chan was to be surrendered to the Hong Kong authorities and signed a surrender warrant under s 23 of the Act.

2 Mr Chan has been in detention pursuant to a warrant issued under s 19(9) of the Act since about June 2000. Mr Walsh, appearing for Mr Chan, filed an affidavit setting out a history of events relevant to this proceeding and an account of Mr Chan's medical history. The respondent did not object to this evidence being admitted for the purpose of this interlocutory proceeding although it was suggested that, because of the concessions referred to in [5] below, it was not relevant. As it turns out, the evidence is not material to my decision in this case. However, it does provide some understanding of the predicament in which Mr Chan is presently placed.

3 Mr Chan has been HIV positive for about 13 years. Medical reports indicate that his health is very precarious and that his life expectancy is severely compromised. The anxiety and distress caused by the extradition process and subsequent imprisonment have affected his health. The position is exacerbated by the concern that Mr Chan, as an only son, is said to have for his very elderly parents who are frail and in poor health. In these circumstances, the long imprisonment of an Australian citizen who, although subject to the extradition processes prescribed under the Act, must still be subject to the presumption of innocence, is a matter of grave concern.

4 At the hearing on Wednesday, 28 February 2001, the applicant was given leave to file an amended application under s 39B of the Judiciary Act 1903 (Cth) for a review of the Minister's decision that Mr Chan was to be surrendered to the Hong Kong authorities. Pending a decision on his application, Mr Chan sought interlocutory orders staying the execution of the surrender warrant and releasing him from custody.

5 Mr Wigney, who appeared for the respondent Minister, informed the Court that the Minister does not oppose the the order staying the execution of the surrender warrant pending the outcome of these proceedings and I propose to make that order. In relation to the order concerning the applicant's release from custody, the Minister conceded that there is a serious question to be tried in relation to the primary relief sought by the applicant and that the balance of convenience was in favour of granting the order releasing the applicant from custody pending the disposition of this proceeding. However, the Minister submits that the Court has no power to make such an order

6 Both parties conceded that, for the purposes of this proceeding, the only power to make interlocutory orders is that contained in s 23 of the Federal Court of Australia Act 1976 (Cth) which provides as follows:

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."

7 Mr Wigney submitted that the power of the Court under s 23 does not extend to the making an interlocutory order that goes beyond the relief that could be obtained on a successful determination of the primary claim in the proceeding. He referred to the familiar metaphor that a stream cannot rise above its source.

8 The High Court has held on a number of occasions that the power in s 23 is limited. In the words of Brennan J in Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 620-21, it is limited to the "grant of remedies appropriate to the protection and enforcement of the right or subject-matter in issue". A similar view was expressed by Deane J who said (at 622) that the power,

"... exists only `in relation to matters' in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to making of the `kinds' of order, whether final or interlocutory, which are capable of properly being seen as `appropriate' to be made by the Federal Court in the exercise of its jurisdiction."

9 Similar sentiments were expressed in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at [35] and in Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 at [41]- [42].

10 In seeking to rebut the submission of want of power, Mr Walsh relied on Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 ("Msilanga") and Betkhoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 470; (1999) 92 FCR 504 ("Betkhoshabeh"). Mr Walsh submitted that Msilanga, being a decision of the Full Court of this Court, was binding authority and dispositive of the issue.

11 The proceeding in Msilanga concerned a deportation order made against Mr Msilanga. Under s 93 of the Migration Act 1958 (Cth) ("Migration Act") at that time, a person subject to an order for deportation could be arrested and held in custody pending deportation. The Migration Act specifically provided that the validity of the deportation order was not affected merely by the fact that proceedings for its review had been commenced. Mr Msilanga, who was in custody, applied to the Minister to order his release in exercise of the Minister's discretion under s 93(9) of the Migration Act. The application was refused. Mr Msilanga instituted the subject proceedings pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) challenging the decision to retain him in custody and the Minister's refusal to make an order pursuant to s 93(9). The primary judge made an interlocutory order that Mr Msilanga be released from custody pending the determination of his application for judicial review. The Minister appealed against this order.

12 In the Full Court Beaumont J, with whom Black CJ agreed, upheld the primary judge's order. His Honour accepted that the scope of s 23 is limited but held at 181-182 that:

"Where the administrative actions under challenge are decisions to arrest and to detain custody, there is no reason, in principle, why it would not be appropriate for the court to order, on an interim footing, that the party be released from custody until the substantive claim is dealt with."

13 Msilanga was applied in Betkhoshabeh. The applicant in that case was subject to a deportation order issued by the respondent. The issue of the order had on two occasions been confirmed by the Administrative Appeals Tribunal and in both cases the Tribunal's decision had been overturned by the Federal Court and a rehearing ordered. The respondent had appealed to the full Federal Court against the latter order but the appeal had not yet been heard. The applicant had asked the Minister to exercise his power under s 253(9) of the Migration Act to release him pending the resolution of his primary claim. The Minister refused. The instant case concerned an application for review the Minister's decision not to order the release of the applicant from detention. By notice of motion, the applicant also sought interlocutory relief which Weinberg J at [4], described as,

"essentially in the same terms as the final relief sought in his application for review, save that the interlocutory orders sought on the motion would direct the respondent to release the applicant from custody pending the final determination of the substantive proceedings."

14 His Honour analysed the applicant's claim at [77]-[78] as follows:

"The fact is that Mr Betkhoshabeh seeks judicial review of a decision by the Minister not to exercise a power conferred upon him under s 253(9) of the Migration Act. ... In challenging the Minister's decision not to order his release pursuant to s 253(9) the applicant is, in effect, challenging the legality of his continuing detention. I do not see why the fact that he is not, in the proceedings before me, challenging the original deportation order, or the validity of his original detention under that order, should preclude him from seeking interlocutory relief."

15 In Betkhoshabeh, Weinberg J held that he had the jurisdiction to make the order although he declined to make it on the grounds that the balance of convenience clearly favoured refusing the relief.

16 Unfortunately for the applicant, I cannot see how either Msilanga or Betkhoshabeh apply to his situation. In both those cases the applicant was directly challenging the legal basis of his imprisonment. Therefore, an interlocutory order that he be released from custody was not wider than he could expect if successful in his challenge. The stream would not be rising above its source. The position here is different.

17 Mr Chan is in custody pursuant to a warrant issued under s 19(9) of the Act by the magistrate who determined his eligibility for surrender. Section 19(9) is mandatory in its terms:

"Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence ... the magistrate shall:

(a) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5); ...[emphasis added]

18 Section 22, in so far as is relevant, provides that:

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

.........

(5) Where the Attorney-General determines under subsection (2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney-General shall order, in writing, the release of the person.

19 The only provision in the Act for release from imprisonment under s 19(9) is in s 21(6)(f)(iv) which provides that if there are special circumstances justifying such a course, a court may order the release on bail of the person imprisoned on such terms as the court thinks fit until the review is conducted or the appeal is heard. However, that provision only applies where an application for review or an appeal has been made under s 21(6)(a), (b) or (c). That is not the situation here.

20 In this case, the challenge is directed not to the magistrate's decision but to the Minister's exercise of the power given under s 22 of the Act. Were the applicant to succeed in his challenge to the Minister's determination that he is to be surrendered, the Court would not be entitled to order that he be released from custody. As Mr Wigney submitted, in those circumstances, the most the applicant could hope for would be a declaration that the surrender warrant signed by the Minister is invalid because it had not issued pursuant to a valid determination under s 22(2). The applicant would still be awaiting surrender or release; ss 19(9)(a), 22(5). Unfortunately, there is no provision in the Act to enable the applicant's release from prison while the process of reviewing the Minister's decision takes its course. The circumstances of the present applicant show how harsh this regime may be, especially, as I mentioned earlier, in the case of an Australian citizen who is entitled to be presumed innocent even if legitimately subject to the extradition process.

21 My reasoning in this case is consistent with that of Kenny J in Peniche v Vanstone [1999] FCA 1688; (1999) 96 FCR 38. That case also concerned proceedings under the Act, namely a decision made by a magistrate under s 15. The applicant there challenged the validity of the notices issued by the Minister under s 16. Kenny J noted at [21] that the applicant did not challenge the decision to arrest him and to remand him in custody. Nor did he seek, by way of interlocutory relief, a stay of that decision. For that reason her Honour distinguished both Msilanga and Betkhoshabeh . She held, at [27], that "the grant of interlocutory relief sought by the applicant in these proceedings is not capable of being seen as appropriate, in the sense referred to by the majority in Sterling", and that therefore she must dismiss the motion.

22 I find that the power of this Court to make interlocutory orders under s 23 of the Federal Court of Australia Act 1976 (Cth) does not extend to the order sought releasing the applicant from custody.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 2 March 2001

Solicitor for the Applicant:	Greg Walsh & Co
Counsel for the Respondent:	Mr M A Wigney
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 February 2001
Date of Judgment:	2 March 2001