Rivera v Minister for Home Affairs [2008] FCA 10 (16 January 2008)

Last Updated: 16 January 2008

FEDERAL COURT OF AUSTRALIA

Rivera v Minister for Home Affairs [2008] FCA 10

EXTRADITION – application for writ of habeas corpus on basis that detention unlawful – whether lawful custody ceases upon transfer to custody of foreign authorities in Australia – ‘reasonable cause’ under s 26(6) of Extradition Act 1988





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

























LAWRENCE RIVERA v MINISTER FOR HOME AFFAIRS
NSD 2546 OF 2007

EDMONDS J
16 JANUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2546 OF 2007

BETWEEN:	LAWRENCE RIVERA Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	7 JANUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant’s application under s 39B of the Judiciary Act 1903 (Cth) filed on 28 December 2007 be dismissed.

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	NSD 2546 OF 2007

BETWEEN:	LAWRENCE RIVERA Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	EDMONDS J
DATE:	16 JANUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 7 January 2008 I heard and determined the applicant’s application filed on 28 December 2007, seeking a writ of habeas corpus and other relief. At the time of giving judgment I indicated I would publish my reasons at an early date, and I now do so.

2 The matter was listed for first directions on 8 February 2008. On 2 January 2008 however, the applicant filed a notice of motion seeking to have the hearing expedited and the surrender warrant issued under s 23 of the Extradition Act 1988 (Cth) stayed, in light of an arrangement that he be extradited from Australia to the United States some time in the week commencing 7 January 2008. This arrangement was put in place after the applicant was placed on a commercial airline flight to the United States on 22 December 2007 in the custody of United States authorities, but, due to the pilot’s refusal to carry him, was removed from the aircraft prior to its departure and returned to the custody of Australian authorities.

3 When the notice of motion came on for hearing before Tamberlin J on 3 January 2008, the applicant stated that he did not wish to press at that time either his application of 28 December 2007 or his notice of motion of 2 January 2008, despite the fact that he was well aware of the arrangement to remove him from Australia during the week commencing 7 January 2008. Instead, the applicant only sought a referral under O 80 r 4 of the Federal Court Rules 1979 (Cth) of his case to a legal practitioner on the Pro Bono Panel. He indicated that he would consider not pursuing either his application or notice of motion after he had obtained legal assistance.

4 Tamberlin J dismissed the applicant’s application under O 80 r 4 with costs. In his Honour’s view, the administration of justice did not require that the matter be referred to a Registrar to arrange pro bono legal representation or advice for the applicant because his application of 28 December 2007 disclosed no reasonable prospect of success, and the applicant had not adduced any evidence or provided any authority to indicate otherwise ([8]).

5 Nevertheless, the applicant was legally represented on the hearing of his application before me on 7 January 2008.

6 The applicant’s case relied on two arguments:

(1) That his present detention is unlawful because once he was placed in the custody of the United States marshalls, described in the surrender warrant issued under s 23 of the Extradition Act 1988 (Cth) as ‘the escort’, on 22 December 2007, for transport out of Australia, his lawful custody by Australian authorities ceased, and his re-transfer into the custody of Australia authorities on that date was without lawful authority; as is the continuation of his custody since that date.

(2) That, pursuant to subs 26(5) of the Extradition Act 1988 (Cth), he is retained in custody unlawfully because two months have elapsed since the day on which the surrender warrant in respect of his extradition was first liable to be executed. It seems to be common ground that the surrender warrant was first liable to be executed on 24 October 2007 when judicial review of the Minister’s decision came to an end with the High Court’s dismissal of the applicant’s leave application.

7 In my view, neither argument is sustainable. The first argument is not sustainable because the applicant’s lawful custody by Australian authorities did not cease when he was placed in the custody of the escort. It did not cease at least until the second limb of the stated purpose of his detention in custody in para (b) of the s 23 surrender warrant was satisfied, namely, that he was transported out of Australia. To hold otherwise would lead to a farcical situation if the applicant was to escape from the custody of the escort prior to his transport out of Australia; on his detention, he could not be held in lawful custody by the Australian authorities. It may be that detention of the applicant in lawful custody by Australian authorities would not terminate until he was transported ‘out of Australia to a place in the United States’ (para (c) of the s 23 surrender warrant) a view to which his Honour, Tamberlin J, inclined, but it is not necessary that I come to any conclusion on that view. On my view, the authority of the s 23 surrender warrant did not cease because the applicant was not transported out of Australia; his re-transfer into the custody of Australian authorities on 22 December 2007 and his continued custody by them since that date is therefore lawful.

8 The second argument is equally unsustainable. Subsection 26(6) of the Extradition Act 1988 (Cth) provides that a court shall not order the cessation of a detention which has lasted more than two months if the delay is for ‘any ... reasonable cause’. In an affidavit sworn by the applicant in support of his application, he disputes that it was behaviour within his control that lead to the pilot of the commercial aircraft refusing to carry him. Even if that be right, it was the pilot’s refusal to carry the applicant and the consequential need for the United States authorities to find an alternative means of transport, that were the reasons for the delay beyond the two month period. Those reasons, on any view, provide a sound basis for reasonable cause within para (b) of subs 26(6) to mandate that the Court not order the applicant’s release from custody.

9 The application must be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated: 16 January 2008

Solicitor for the Applicant:	Mr J Nasr
Solicitor for the Respondent:	Australian Government Solicitor (Mr S Vorreiter)

Date of Hearing:	7 January 2008
Date of Judgment:	16 January 2008