Rivera v Minister for Home Affairs [2008] FCA 1 (4 January 2008)

PRACTICE AND PROCEDURE – application for referral to a legal practitioner on Pro Bono Panel under O 80 r 4 of the Federal Court Rules 1979 (Cth) – Court’s discretion – central application discloses no reasonable prospects of success.

Extradition Act 1988 (Cth) ss 23, 26(5), 26(6)
Federal Court Rules 1979 (Cth) O 80 r 4

Hicks v Ruddock (2007) 156 FCR 575 cited
Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 cited
Rivera v Human Rights and Equal Opportunity Commission [2007] FCA 2037 cited
Rivera v The Commonwealth of Australia [2007] FCA 1465 cited
Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 319 cited

LAWRENCE RIVERA v MINISTER FOR HOME AFFAIRS
NSD 2546 OF 2007

TAMBERLIN J
4 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:	TAMBERLIN J
DATE OF ORDER:	4 JANUARY 2008
WHERE MADE:	SYDNEY

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:	TAMBERLIN J
DATE OF ORDER:	4 JANUARY 2008
WHERE MADE:	SYDNEY

1 These reasons concern an application made by Mr Rivera in court on 3 January 2008. The application is for an order, pursuant to the Court’s discretionary power under O 80 r 4 of the Federal Court Rules 1979 (Cth), that this matter be referred to a legal practitioner on the Pro Bono Panel for legal assistance.

2 This application was made subsequent to numerous other applications made by Mr Rivera in this Court since he was placed in custody in Australia in 2002 pending extradition to the United States of America to face charges relating to a murder he is alleged to have committed in California in May 2002. The most recent of these applications was determined by Flick J on 13 December 2007, in which his Honour declined to expedite the hearing of an appeal from the decision of a Judge of the Court which dismissed an application for review of a decision of the Human Rights and Equal Opportunity Commission: see Rivera v Human Rights and Equal Opportunity Commission [2007] FCA 2037. The history of some of Mr Rivera’s earlier litigation is summarised by Gyles J in Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191. It is not necessary for me to repeat or elaborate upon this extensive litigious history.

3 On 28 December 2007, Mr Rivera filed an application seeking a writ of habeas corpus and other relief. The matter was listed for first directions on 8 February 2008. On 2 January 2008, however, Mr Rivera 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 Mr Rivera was placed on a commercial airline flight to the United States on 22 December 2007 in the custody of the United States’ authorities, but, due to his behaviour, was removed from the aircraft prior to its departure and returned to the custody of Australian authorities.

4 When the notice of motion came on for hearing on 3 January 2008, Mr Rivera 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 next week. Instead, Mr Rivera 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.

5 Accordingly, these reasons only concern the question of whether the Court should exercise its discretion to make an order under O 80 r 4. As Mr Rivera did not press his notice of motion seeking expedition of his application for habeas corpus or a stay of his surrender, I will not rule on those matters. That application remains listed for first directions on 8 February 2008, irrespective of any matter these reasons address. Similarly, these reasons do not stay the surrender warrant issued under s 23 of the Extradition Act 1988 (Cth).

When considering such an application, O 80 r 4(2) empowers the Court to take into account any matter it deems appropriate, including the means of the litigant, the capacity of the litigant to otherwise obtain legal assistance and the nature and complexity of the proceeding. This discretion is a broad one, and is not limited by those matters set out in O 80 r 4(2): see Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 319 at [10]- [11].

7 The issue in the present reasons is whether the discretion of the Court should determine that the "administration of justice" requires Mr Rivera’s proceedings to be referred to the Registrar to arrange for pro bono legal representation.

8 In my view, the administration of justice in this case does not require that the matter be referred to a Registrar to arrange pro bono legal representation or advice for Mr Rivera because his application of 28 December 2007 discloses no reasonable prospects of success, and Mr Rivera has not adduced any evidence or provided any authority to indicate otherwise. The lack of reasonable prospects of success, or where a case is "patently hopeless" or has no "arguable basis", has been regarded by the Court as sufficient reason to refuse a referral under O 80 r 4: see Taylor [2005] FCA 319 at [10]; Rivera v The Commonwealth of Australia [2007] FCA 1465 at [34]. As a matter of discretion, therefore, I am of the view that it is not appropriate to prolong the present proceedings which are without merit.

9 The reason Mr Rivera’s case discloses no reasonable prospects of success is because it relies entirely on a premise that cannot be maintained. For habeas corpus to issue, an applicant must show that he or she is unlawfully held in the custody or control of the respondent: see Hicks v Ruddock (2007) 156 FCR 575 at 587-592. Mr Rivera’s application depends on the assertion that his present detention is unlawful because, once he placed on the commercial airline flight on 22 December 2007, his lawful custody under Australian authorities ceased, and the continuation of his custody since that date is without lawful authority.

10 This assertion is without substance because the authority to detain Mr Rivera did not, and indeed could not, terminate at the point at which Mr Rivera boarded the flight.

11 The authority to detain did not terminate because the surrender warrant issued by the Minister for Justice and Customs (now styled the Minister for Home Affairs) under s 23 of the Extradition Act 1988 (Cth) on 31 August 2006 authorises Mr Rivera’s custody in Australia until he is transported "out of Australia to a place in the United States". Given that the power of the Minister to issue this warrant and include such a condition is not disputed by Mr Rivera in his application of 28 December 2007, it is uncontentious that the warrant, when issued, represented a lawful authorisation of his custody in Australia. In my view, the provision in the warrant that Mr Rivera’s custody continue until he is transported "to a place in the United States" – which a seat on a commercial airline flight yet to take off patently is not – is sufficient basis on which to hold that the warrant still constitutes lawful authorisation of his custody in Australia.

12 In addition, the authority to detain could not possibly be said to have terminated in these circumstances because it would result in serious practical difficulties. One difficulty would be the likelihood that persons in the process of being extradited would easily be able to avoid extradition, or indeed any form of ongoing custody, simply by repeating the same type of behaviour as that used by Mr Rivera in this case, and then seeking habeas corpus. The Great Writ was not designed to aid the evasion of justice, but rather the proper administration of it, a task that would be impossible if properly issued extradition warrants were frustrated by specious applications in circumstances such as those of the present case.

13 Mr Rivera’s application of 28 December 2007 also indicates that he will argue that, pursuant to s 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. This argument is also untenable. Section 26(6)(b) 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 this case, on the basis of evidence adduced by the respondent which was not disputed or contradicted by Mr Rivera, it is clear that reasonable cause for the delay exists, namely, the behaviour of Mr Rivera when placed on a commercial airline flight, and the need for the United States’ authorities to find an alternative means of transport.

For the above reasons, I dismiss the application under O 80 r 4 of the Federal Court Rules 1979 (Cth) with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

The Applicant appeared in person

Counsel for the Respondent:	Mr S Vorreiter

Solicitor for the Respondent	Australian Government Solicitor

Date of Hearing:	3 January 2008

Date of Judgment:	4 January 2008

Federal Court of Australia

Rivera v Minister for Home Affairs [2008] FCA 1 (4 January 2008)