Rivera v Human Rights and Equal Opportunity Commission [2007] FCA 2037

FEDERAL COURT OF AUSTRALIA

Rivera v Human Rights and Equal Opportunity Commission [2007] FCA 2037

LAWRENCE RIVERA v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, COMMONWEALTH OF AUSTRALIA AND STATE OF NEW SOUTH WALES NSD 2438 OF 2007

FLICK J

13 DECEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2438 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: LAWRENCE RIVERA

Appellant

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

STATE OF NEW SOUTH WALES

Third Respondent

JUDGE: FLICK J DATE OF ORDER: 13 DECEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Appellant's Notice of Motion as filed 12 December 2007 is dismissed. 2. No order as to costs. 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 2438 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: LAWRENCERIVERA

Appellant

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

STATE OF NEW SOUTH WALES

Third Respondent

JUDGE: FLICK J

DATE: 13 DECEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Mr Rivera is a citizen of the United States of America who is presently in detention at the Silverwater Metropolitan Reception and Remand Centre under the Extradition Act 1988 (Cth). 2 On 29 May 2006 Mr Rivera filed a complaint with the Human Rights and Equal Opportunity Commission alleging that his conditions of detention were contrary to human rights. The facts the subject of that complaint are also being pursued by Mr Rivera in proceedings in the Supreme Court of New South Wales. The facts in issue, if established, expose serious wrongdoing. 3 On 13 September 2007 the Commission exercised its powers under s 20(2)(c) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) declining to continue the inquiry into the complaint made. In part, the letter communicating that decision stated: In the circumstances I am not inclined to accede to your request that I place my inquiry on hold for an indeterminate time while the Supreme Court matter proceeds. I have therefore decided to decline to continue my inquiry into you complaint pursuant to section 20(2)(c)(ii) of the HREOC Act as I am of the opinion that some other more appropriate remedy is reasonably available to you. On this basis, your complaint with the Commission is considered finalised. 4 Although that letter refers to s 20(2)(c)(ii), the power being invoked by the Commission was that conferred by s 20(2)(c)(iv). 5 On 4 December 2007 His Honour Justice Jacobson dismissed an Application seeking review of that decision of the Commission. 6 Jacobson J rejected each of the three grounds relied upon by Mr Rivera, namely: 1. an allegation that the decision was vitiated by reason of a denial of procedural fairness; 2. that the power was exercised for an improper purpose; and 3. that the decision to not continue the inquiry was premature. 7 A Notice of Appeal was filed on 12 December 2007. That Notice of Appeal, in summary form, alleges that the trial judge erred. 8 Now before the Court is a Notice of Motion also filed on 12 December 2007 seeking expedition of the hearing of the appeal. 9 In support of the motionMr Rivera relied upon two Affidavits deposing to the unlikelihood of his being able to conduct his appeal if he is removed from the country prior to the hearing of the appeal. Mr Rivera also deposed to other proceedings in the Federal Court in which he seeks to challenge the extradition process which would see him extradited to the United States of America. These proceedings are summarised in part in Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191, a decision of the Full Court of this Court delivered on 4 December 2007. 10 The hearing of the Appellant's motion has been expedited as he believes that he may be removed from Australia in the immediate future. There has been an appearance today on behalf of the First Respondent. The Second and Third Respondents, however, have not been served and the Appellant sought to proceed as against those Respondents, as he termed it, "ex parte". The First Respondent did not oppose that course and it was in fact the course pursued. 11 It is not considered that the appeal in the present proceedings should be expedited. 12 The issues before Justice Jacobson do not impact upon the Applicant's extradition. They do not impact upon the Minister's ability to give effect to the warrant for extradition. Had the present appeal impacted upon the legality of that extradition process currently being undertaken, different considerations would have applied. 13 In considering whether or not the appeal should be expedited, some consideration has also been given to the Appellant's prospects of success on appeal. It is considered that the decision of Jacobson J does not expose any self-evident error and is not attendant with sufficient doubt so as to warrant the expedition of an appeal. 14 Although it is appreciated that Mr Rivera may suffer difficulty prosecuting the present appeal if he is extradited before the hearing of that appeal, it is not considered that such practical difficulties as he may encounter justify expedition.