Rivas v Republic of Chile

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 24 June 2021
• Neutral Citation: [2021] FCA 693
• Date: 24 June 2021

Federal Court of Australia

Rivas v Republic of Chile [2021] FCA 693

File number:	NSD 1231 of 2020
Judgment of:	ABRAHAM J
Date of judgment:	24 June 2021
Catchwords:	EXTRADITION – statutory appeal under s 21 of the Extradition Act 1988 (Cth) challenging the orders of a magistrate that the applicant was eligible for surrender to the Republic of Chile under s 19(9) of Extradition Act 1988 (Cth) – where the applicant challenges the warrant, the description of the offence and the sufficiency of the statement of conduct – where the applicant asserts that the magistrate ought to have called for additional documents – where the applicant challenges that dual criminality is satisfied – where the applicant argues that all extradition objections are made out – where the applicant has not established any of the grounds of review – application dismissed.
Legislation:	Criminal Code 1995 (Cth) s 11.2(1), Div 268, Subdivision C Defence Force Discipline Act 1982 (Cth) Extradition Act 1988 (Cth) ss 5, 7, 12, 15, 16, 19, 21, 22 Extradition Regulations 1988 (Cth) reg 2B Crimes Act 1900 (NSW) ss 86, 93S, 93T Treaty on extradition between Australia and the Republic of Chile [1996] ATS 7; [1996] UNTSer 413 Arts IV, IX Criminal Code (Chile) Art 141 No.3
Cases cited:	Bennett v Government of the United Kingdom [2000] FCA 916; (2000) 179 ALR 113 Cabal v United Mexican States [2001] FCA 427; (2001) 108 FCR 311 Cabal v United Mexican States (No 2) [2000] FCA 445; (2002) 172 ALR 743 Cabal v United Mexican States (No 3) [2000] FCA 1204; (2000) 186 ALR 188 Director of Public Prosecutions of the Commonwealth v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 Dutton v O’Shane [2003] FCAFC195; (2003) 132 FCR 352 Federal Republic of Germany v Parker (1998) 166 ALR 522; (1998) 84 FCR 323 Griffiths v United States of America [2005] FCAFC 34; (2005) 143 FCR 182 Haddad v Larcombe (1989) 42 A Crim R 139 Harris v Attorney-General of the Commonwealth [1993] FCA 466; (1993) 45 FCR 11 Harris v Attorney-General of the Commonwealth [1994] FCA 1320; (1994) 52 FCR 386 Kalinovas v Republic of Lithuania [2015] FCA 961 Liem v Republic of Indonesia [2017] FCA 1303 Liem v Republic of Indonesia [2018] FCAFC 135; (2018) 265 FCR 251 Matson v United States of America [2016] FCA 1548 Matson v United States of America [2018] FCAFC 57; (2018) 260 FCR 187 Minister for Home Affairs v Zentai [2012] HCA 28; (2012) 246 CLR 213 Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; (2002) 209 CLR 533 North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246 R v Tardrew (1988) 37 A Crim R 264 Republic of Croatia v Snedden [2010] HCA 14; (2010) 241 CLR 461 Republic of South Africa v Dutton [1997] FCA 708; (1997) 77 FCR 128 Rivas v Republic of Chile [2019] FCA 1940 Rivas v Republic of Chile [2020] FCA 737 Rojas v United States of America [2019] FCA 22 Timar v Republic of Hungary [1999] FCA 1518 Timar v Republic of Hungary [2000] FCA 755 Traljesic v Bosnia & Herzegovina [2016] FCA 383; (2016) 338 ALR 637 Vasiljkovic v Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614 Zentai v Republic of Hungary [2009] FCA 284 Zentai v Republic of Hungary [2009] FCAFC 139; (2009) 180 FCR 225 Zoeller v Federal Republic of Germany [1989] FCA 802; (1989) 23 FCR 282
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	174
Date of hearing:	6 April 2021
Counsel for the Applicant:	Mr F Santisi
Solicitor for the Applicant:	Tsintilas & Associates
Counsel for the Respondents:	Mr T Glover
Solicitor for the Respondents:	Commonwealth Attorney-General’s Department

ORDERS

		NSD 1231 of 2020
BETWEEN:	ADRIANA RIVAS Applicant
AND:	REPUBLIC OF CHILE First Respondent ; THE MAGISTRATE OF THE LOCAL COURT OF NEW SOUTH WALES P STEWART Second Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	24 JUNE 2021

THE COURT ORDERS THAT:

1. The application for review is dismissed.

2. The order of Magistrate Stewart (the second respondent) dated 29 October 2020, made under s 19(9) of the Extradition Act 1988 (Cth), is confirmed.

3. The applicant is to pay the first respondent’s costs to be agreed or taxed.

THE COURT DETERMINES THAT:

4. The applicant is eligible for surrender, within the meaning of s 19(2) of the Extradition Act 1988 (Cth), in relation to the seven counts of aggravated kidnapping, contrary to Article 141 No.3 of the Criminal Code (Chile), for which her extradition is sought.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1. The first respondent, the Republic of Chile (Chile), has sought, pursuant to an extradition request presented to Australia, the extradition of the applicant, Ms Rivas, to face prosecution in Chile for seven counts of aggravated kidnapping, contrary to Article 141 No.3 of the Criminal Code (Chile).

2. The history of these proceedings is set out in Rivas v Republic of Chile [2019] FCA 1940 (Rivas (No 1)) and Rivas v Republic of Chile [2020] FCA 737 (Rivas (No 2)).

3. Relevantly, for current purposes, the events are as follows. On 6 August 2018, Chile presented the extradition request for Ms Rivas to Australia. On 26 October 2018, the Attorney-General issued a notice of receipt of the extradition request pursuant to s 16 of the Extradition Act 1988 (Cth). On 5 December 2018, a magistrate of the Australian Capital Territory issued an extradition arrest warrant in relation to Ms Rivas. On 19 February 2019, Ms Rivas was arrested pursuant to the warrant and was remanded in custody pursuant to s 15 of the Extradition Act. On 27 June 2019, following Ms Rivas being refused bail, which was the subject of review in Rivas (No 1), Chile applied for s 19 proceedings to be conducted. After the exchange of extensive material and submissions by the parties, those proceedings were conducted before the second respondent (the Magistrate) over four days in 2020. On 29 October 2020, the Magistrate delivered his decision, with written reasons provided (the Decision). The Magistrate found that Ms Rivas was eligible for surrender to Chile, and made an order committing her to prison by warrant in the statutory form, as required by s 19(9)(a) of the Extradition Act.

4. This is an application for review from the Decision, pursuant to s 21 of the Extradition Act.

5. For the reasons given below, the application is dismissed.

Statutory scheme

6. In Rivas (No 2) I outlined the extradition process at [25]-[37].

7. Given the nature of the applicant’s submissions in this review, it is appropriate to repeat that explanation of the process with some additional commentary.

8. ...