Matson v Attorney-General

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 24 June 2022
• Neutral Citation: [2022] FCA 790
• Date: 24 June 2022

Federal Court of Australia

Matson v Attorney-General [2022] FCA 790

File number:	QUD 215 of 2022
Judgment of:	LOGAN J
Date of judgment:	24 June 2022
Catchwords:	EXTRADITION – application for judicial review of decision by Attorney-General – whether Attorney-General has power to revoke decision to surrender decision under s 22 of the Extradition Act 1988 (Cth) – where Attorney-General determined that he had no power to reconsider decision by Acting Attorney-General made under s 22 of the Extradition Act 1988 (Cth) – held: Attorney-General has power (but no obligation) by necessary implication pursuant to s 33 of the Acts Interpretation Act 1901 (Cth) to revoke surrender decision in conjunction with the power to revoke a surrender warrant – declarations made ; EXTRADITION – bail – application for bail in application for judicial review of decision under Extradition Act 1988 (Cth) – where proceeding sought to compel Attorney-General to revoke surrender decision – where no power to grant bail under s 23 of the Federal Court of Australia Act 1976 (Cth) where relief sought in proceeding would not result in applicant being released from custody if successful – where Extradition Act 1988 (Cth) contemplates applicant being held in custody pending extradition – where no special circumstances justifying bail established in any event – bail refused
Legislation:	Acts Interpretation Act 1901 (Cth) ss 26, 33 Extradition Act 1988 (Cth) ss 19, 22, 23, 26 Federal Court of Australia Act 1976 (Cth) s 23 Judiciary Act 1903 (Cth) s 39B High Court Rules 2004 (Cth)
Cases cited:	Brock v Minister for Home Affairs [2010] FCA 1301 Chan v Minister for Justice and Customs (2001) 108 FCR 65 Edwards v Santos Ltd (2011) 242 CLR 421 Foster v Minister for Customs and Justice (2000) 200 CLR 442 Matson v Attorney-General (Cth) [2021] FCA 161 Matson v Attorney-General (Cth) [2022] FCA 461 Matson v Attorney-General (Cth) (No 2) [2022] FCA 213 Matson v Buckingham [2022] FCA 777 Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Snedden v Minister for Justice for the Commonwealth (2014) 230 FCR 82 United Mexican States v Cabal (2001) 209 CLR 165 Zentai v O’Connor [2009] FCA 1597
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	57
Date of hearing:	24 June 2022
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr G Del Villar QC with Mr M McKechnie
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		QUD 215 of 2022
BETWEEN:	BARON MATSON Applicant
AND:	THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Respondent

order made by:	LOGAN J
DATE OF ORDER:	24 JUNE 2022

THE COURT ORDERS THAT:

1. In so far as the same may be necessary, the applicant be granted an extension of time to the date of the filing of the application for an extension of time in respect of an application for the review of the respondent’s decision, evidenced by his response in December 2022 to the applicant’s letter of 11 August 2020, with the need for the filing and service of that application being dispensed with.

2. The application for bail be dismissed.

THE COURT DECLARES THAT:

3. On the true construction of ss 22 and 26 of the Extradition Act 1988 (Cth) and s 33(3)of the Acts Interpretation Act 1901 (Cth):

   1. the respondent has power, by necessary implication, to revoke a surrender decision in conjunction with a decision to revoke a surrender warrant; and

   2. the respondent is not subject to an obligation to consider whether to exercise that power.

THE COURT NOTES THAT:

4. The respondent, by his counsel, has undertaken to the Court that the respondent will not execute the surrender warrant until such time as the respondent has reconsidered the applicant’s letter of 11 August 2020 in light of the declaration made by the Court.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1. On 26 October 2005, a grand jury in the United States of America returned an indictment charging the applicant, Mr Baron Matson (Mr Matson), his father, and another with a series of alleged offences, being one count of conspiracy to commit mail fraud and wire fraud, five counts of mail fraud, and nine counts of wire fraud. Later that year, another grand jury returned a superseding indictment which charged Mr Matson and others with the original offences and an additional count alleging conspiracy to commit money laundering. The essence of the allegations is that, between September 1997 and January 2001, Mr Matson and his co-conspirators conspired and induced persons in the United States to invest in a fraudulent investment scheme and that they then vanished with the investors’ money.

2. It was not until 21 May 2014 that Australia received a request from the United States of America for the extradition of Mr Matson. Thereafter, there has been much litigation both in the course of the four-stage process of extradition to countries other than New Zealand for which the Extradition Act 1988 (Cth) (Extradition Act) provides, as well as in respect of a decision made by the then-Acting Attorney-General, the Honourable Greg Hunt MP, on 1 February 2019 to surrender Mr Matson to the United States. An account of the litigation history is offered by White J in Matson v Attorney-General (Cth) [2021] FCA 161, commencing at [7]. To that history of litigation might also now be added the judgments of Collier J, Matson v Attorney-General (Cth) (No 2) [2022] FCA 213 and Matson v Attorney-General (Cth) [2022] FCA 461.

3. It is not necessary to refer in any greater detail to the earlier litigation. That is because it is not submitted on behalf of the Attorney-General in the present proceeding that any of that litigation gives rise to what has been termed Anshun estoppel (qv Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) in relation to the issues which Mr Matson seeks to agitate in the present proceeding. That is not to say that some conclusions reached in that earlier litigation based, in turn, on earlier authorities do not have relevance by analogy, only that Mr Matson is not estopped by any earlier judgment from seeking to agitate the particular issues in the present case.

4. How, then, do those issues arise?

5. On 11 August 2020, Mr Matson wrote to the then-Attorney-General, the Honourable Christian Porter MP. His letter was entitled, “Request to reconsider surrender decision in relation to extradition to United States of America under section 22 of the Extradition Act”. He commenced that letter by referring to the Acting Attorney-General’s surrender decision of 1 February 2019. He requested the Attorney-General, for reasons which he set out in his letter, to reconsider the surrender decision.

6. A sequel to the Acting Attorney-General’s 2019 surrender decision had been the consequential signing at that time of a warrant for Mr Matson’s surrender.

7. The Attorney-General did not choose not to consider Mr Matson’s letter of 11 August 2020. He did consider it. In December 2020, he replied to Mr Matson in terms which should be set out in full:

Thank you for your letter of 11 August...