Matson v The Attorney-General of the Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 19 July 2022
• Neutral Citation: [2022] FCA 839
• Date: 19 July 2022
• Court: Federal Court

Federal Court of Australia

Matson v The Attorney-General of the Commonwealth of Australia [2022] FCA 839

Appeal from:	Matson v Attorney-General [2022] FCA 790
File number:	QUD 244 of 2022
Judgment of:	NICHOLAS J
Date of judgment:	19 July 2022
Catchwords:	EXTRADITION – interlocutory relief sought in aid of appeal - whether interlocutory orders staying surrender warrant and restraining respondent from giving effect to surrender determination should be made ; Held: interlocutory application dismissed
Legislation:	Extradition Act 1988 (Cth) s 22, 23
Cases cited:	Matson v Attorney-General [2020] FCA 1558 Matson v Attorney-General (Cth) [2021] FCA 161 Matson v Attorney-General (No 2) [2022] FCA 213 Matson v Attorney General (Cth) [2022] FCA 461 Matson v Attorney-General [2022] FCA 790 Matson v The Attorney-General of the Commonwealth of Australia [2022] HCATrans 117 Matson v The Attorney-General of the Commonwealth of Australia [2022] HCATrans 120 Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589 Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Division:	General Division
Registry:	Queensland
National Practice Area:	TBC
Number of paragraphs:	15
Date of hearing:	19 July 2022
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr G Del Villar QC
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		QUD 244 of 2022
BETWEEN:	BARON PHILLIP MATSON Appellant
AND:	THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Respondent

order made by:	NICHOLAS J
DATE OF ORDER:	19 July 2022

THE COURT ORDERS THAT:

1. The interlocutory application dated 8 July 2022 be dismissed.

2. The appellant pay the respondent’s costs of the interlocutory application.

3. The appellant’s attendance pursuant to order 2 made on 15 July 2022 is no longer required.

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

REASONS FOR JUDGMENT

(Revised)

NICHOLAS J

1. Before the Court is an interlocutory application filed by the appellant and dated 8 July 2022 seeking a stay of a surrender warrant issued on 1 February 2019 under s 23 of the Extradition Act 1988 (Cth) (“the Act”) together with an interlocutory injunction restraining the respondent from giving effect to the surrender determination made under s 22 of the Act on the same date. The appellant also seeks an order that he be admitted to bail.

2. The interlocutory relief sought by the appellant is in aid of an appeal that the appellant has commenced against a judgment of the primary judge (Logan J) made on 24 June 2022: Matson v Attorney–General [2022] FCA 790. The appellant’s interlocutory application has been listed for hearing on an urgent basis in circumstances where the respondent has advised that the appellant’s extradition to the United States of America is imminent. The evidence before the Court consists of an affidavit made by the appellant on 8 July 2022 and an affidavit of Madeline King, an Australian Government Solicitor lawyer, made on 18 July 2022.

3. The appellant has been held in custody since October 2015 after he was arrested following receipt of a request from the United States for his extradition on various charges. On 1 February 2019 the then Acting Attorney-General, the Hon. Greg Hunt MP, made a determination under s 22(2) of the Act that the appellant be surrendered to the United States and issued a warrant under s 23 of the Act for the appellant’s surrender.

4. The proceeding from which the appeal is brought concerned the respondent’s response to the appellant’s written request dated 11 August 2020 that the respondent revoke the surrender determination made on 1 February 2019. The response from the then Attorney-General, the Hon Christian Porter QC MP, is reproduced in the primary judge’s reasons. His Honour said: at [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 2020 in which you ask me to reconsider the determination made by the Acting Attorney-General, the Honourable Greg Hunt MP, to surrender you to the United States of America.

I appreciate the time you have taken to bring this matter to my attention. However, I do not have the power to remake or reconsider a surrender determination made under section 22 of the Extradition Act 1988 (Cth).

I understand that you sought judicial review of the Acting Attorney-General’s surrender determination. I further understand that you made several interlocutory applications, and that the matters outlined in your letter have been raised during the course of those proceedings. As you are aware, on 28 October 2020, the Federal Court of Australia dismissed your applications. A further matter remains before the Federal Court.

I am conscious that this matter is distressing for you and your family and I am acutely aware of the seriousness of the situation for you.

Thank you for raising this matter with me.

[emphasis added]

5. The primary judge held that the respondent made an error of law in concluding that he did not have power to revoke a surrender determination made under s 22 of the Act in conjunction with a decision to revoke a surrender warrant. His Honour made a declaration to the effect that the respondent had power to revoke a surrender determination in conjunction with a decision to revoke a surrender warrant, but that the respondent was not under any obligation to consider whether or not to exercise that power. His Honour also accepted an undertaking proffered by the respondent to the Court that the respondent would not execute the surrender warrant until such time as the respondent had reconsidered the appellant’s letter of 11 August 2020 in light of the declaration.

6. The appellant’s notice of appeal contains 10 grounds. A number of these relate to the refusal of the primary judge to permit the appellant to reopen his case after judgment had been delivered. However, it is apparent that the appellant’s fundamental contention is that the former Attorney-General’s advice that he would not consider the appellant’s submission due to what he considered to be a lack of power was, in substance and effect, a decision to decline to exercise the power to revoke the surrender decision. The appellant contends that this is a decision that the respondent can be required by an order of the Court to remake and that the primary judge should have so ordered. Further, the appellant contends that in any remaking of that decision, the respondent will be required to act reasonably, according to law (including by affording the appellant procedural fairness), and according to reason, and that the order requiring the respondent to remake his decision should so provide. In short, the orders sought in the appellant’s notice of appeal are directed to compelling the respondent to consider whether or not to exercise the revocation power reasonably and according to law.

7. The authorities referred to by the primary judge included the decision of the Full Court in Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82 (“Snedden”) where Middleton and Wigney JJ said at [150]-[151]:

150 In Rivera v Minister for Justice and Customs (2007) 160 FCR 115, Emmett J (with whom Conti J agreed) described the general discretion in s 22(3)(f) in the following terms (at [14]):

Finally, under s 22(3)(f), the Minister must consider that the person should be surrendered in relation to the offence. Thus, the Minister has a general discretion whether to surrender an eligible person or not. The discretion is unfettered and the Minister may, in the exercise of the discretion, take into account...