Cabal v United Mexican States (No 2) [2000] FCA 445

FEDERAL COURT OF AUSTRALIA

Cabal v United Mexican States (No 2) [2000] FCA 445

EXTRADITION – extradition proceedings before magistrate – extradition objections – substantial grounds for believing that there are extradition objections – real risk test – materials relevant to extradition objections – material before the magistrate for the purposes of review by the Court.

Extradition Act 1988 s 21

Zoeller v Federal Republic of Germany (1989) 23 FCR 282 applied

R v Governor of Pentonville Prison, Ex parte Fernandez [1971] 1 WLR 459 applied

WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 cited

Commonwealth of Australia v Riley (1984) 5 FCR 8 cited

United States of America v Holt (1994) 49 FCR 501 followed

McDade v The United Kingdom [1999] FCA 1868 cited

CARLOS CABAL PENICHE, MARCO PASINI BERTRAN v UNITED MEXICAN STATES, LISA HANNAN, COMMONWEALTH OF AUSTRALIA

V 728 of 1999

FRENCH J

7 APRIL 2000

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V728 OF 1999

BETWEEN: CARLOS CABAL PENICHE

First Applicant

MARCO PASINI BERTRAN

Second Applicant

AND: UNITED MEXICAN STATES

First Respondent

LISA HANNAN

Second Respondent

COMMONWEALTH OF AUSTRALIA

Intervening

JUDGE: FRENCH J

DATE: 7 APRIL 2000

PLACE: MELBOURNE

RULING ON MATERIAL ABLE TO BE CONSIDERED BY THE COURT ON A SECTION 21 REVIEW

Introduction 1 These proceedings are brought, by way of review, under s 21 of the Extradition Act 1988 in relation to a magistrate's decision that the applicants are eligible for extradition to Mexico and her order for their commitment to prison to await surrender. 2 The proceedings before the magistrate occupied some seventy days and involved a substantial quantity of documents and written and oral testimony. There were debates from time to time about material which would be received and treated as evidence by the magistrate. Some documents were tendered, marked as exhibits and treated as evidence, others were tendered and marked for identification but not treated as evidence by the magistrate. Some material was referred to but neither tendered nor marked for identification. 3 A question has arisen concerning which of the material that the applicants sought to rely upon before the magistrate, in one way or another, can be considered by the Court on review. The question arises in connection with material relating to the applicants' objections to extradition that they are being prosecuted by Mexico on account of their political opinions or, if surrendered, are likely to be prejudiced or punished on account of those opinions.