FEDERAL COURT OF AUSTRALIA Matson v Attorney-General (Cth) [2022] FCA 461 File number(s): QUD 356 of 2020 Judgment of: COLLIER J Date of judgment: 29 April 2022 Catchwords: PRACTICE AND PROCEDURE – application for reinstatement – whereas proceeding stands dismissed by operation of self-executing order – whereas non-compliance with self-executing order was allegedly a result of diary error – whereas no sworn evidence was provided in support of reasons for non-compliance – applicant refused to give evidence under oath as to reasons for non-compliance – re-opening of case once judgment reserved – leave sought to file further submissions and grounds of appeal once judgment reserved - applicant would suffer substantial prejudice if appeal not reinstated - in any event applicant's proposed grounds of appeal are without merit – leave to file further submissions and grounds of appeal refused - application for reinstatement dismissed EXTRADITION – validity of surrender decision made under s 22(3)(f) of the Extradition Act 1988 (Cth) - whether the Attorney-General is bound to take into account Indigenous heritage in making such a decision – established authority provides that discretion under s 22(3)(f) of the Extradition Act 1988 (Cth) is unfettered – in any event Indigenous heritage was considered – special connection of Indigenous persons to traditional lands is long-established – Love and Thoms not analogous to the present case given the applicant's Australian citizenship – grounds of appeal have no prospects of success Legislation: Australian Citizenship Act 2007 (Cth) Evidence Act 1995 (Cth) Extradition Act 1988 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 (Cth) Migration Act 1958 (Cth) Native Title Act 1993 (Cth) Treaty on Extradition between Australia and the United States of America Cases cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300 Bishop v R (1982) 58 FLR 233 Brown v Petranker (1991) 22 NSWLR 717 Chen v Monash University (2016) 337 ALR 525 Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41 Dalac v R [2015] NSWCCA 121 De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 330 epublic of Croatia [2009] FCAFC 111 FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13 Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338 In Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203 Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 Karnafi v Minister for Immigration & Multicultural Affairs [1999] FCA 191 Lobban v Minister for Justice [2016] FCAFC 109 Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 Mabo and Others v Queensland (No. 2) [1992] HCA 23 Matson v Attorney-General (Cth) [2021] FCA 161 at [218] Matson v Attorney-General (No 2) [2022] FCA 213 Matson v Attorney-General [2020] FCA 1558 Matson v Secretary, Attorney-General's Department [2021] FCA 1027 Mohammed v Minister for Immigration and Border Protection [2018] FCA 767 O'Donoghue v Ireland [2008] HCA 14 R v Qutami [2001] NSWCCA 353 Rivera v Minister for Justice and Customs [2007] FCAFC 123 Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381 Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 Scroope v Legal Services Commissioner [2013] NSWCA 178 Skinner v Commonwealth of Australia [2012] FCA 1194 Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156 Snedden v Republic of Croatia [2009] FCAFC 111 Soh v Commonwealth [2009] FCA 32 Tenement Administration Services Pty Ltd v Hodson [2013] FCA 610 The Wik Peoples v State of Queensland; The Thayorre People v State of Queensland [1996] HCA 40 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 Vasiljkovic v Commonwealth [2006] HCA 40 Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41 VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 Zetta Jet Proprietary Limited v The Ship "Dragon Pearl" [2018] FCA 878 Division: General Division Registry: Queensland National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 118 Dates of last submissions: 25 March 2022 (applicant) 30 March 2022 (respondent) Date of hearing: 23 March 2022 Solicitor for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr M McKechnie Solicitor for the Respondent: Australian Government Solicitor ORDERS QUD 356 of 2020 BETWEEN: BARON MATSON Applicant AND: ATTORNEY-GENERAL (CTH) Respondent order made by: COLLIER J DATE OF ORDER: 29 April 2022 THE COURT ORDERS THAT: 1. The applicant's application for leave to file further supplementary submissions dated 6 April 2022, and an additional affidavit annexing a Draft Further Supplementary Notice of Appeal dated 5 April 2022, is refused. 2. The applicant's application for reinstatement of this proceeding, filed 14 February 2022, is dismissed. 3. The applicant pay the costs of the respondent of and incidental to the proceedings, to be taxed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLLIER J 1 On 14 February 2022 Mr Baron Matson (the applicant) filed an interlocutory application with the Federal Court Registry seeking reinstatement of his appeal in proceeding QUD356/2020. This proceeding was dismissed by self-executing order originally made by myself on 9 July 2021, and subsequently varied by Reeves J by consent on 1 October 2021. The relevant orders originally made by me were as follows: 2. The appellant be granted leave to file and serve any further amended notice of appeal (further amended notice of appeal) by 4.00 pm on 30 September 2021. 3. If the appellant fails to file and serve any further amended notice of appeal in accordance with paragraph 2 of these Orders, the appeal stand dismissed without further order of the Court and the appellant pay the costs of the respondent on a standard basis. 2 Justice Reeves further extended the time for compliance with Order 2 to 5 November 2021. 3 The applicant did not comply with Order 2 as varied by Reeves J. Accordingly, his appeal stood dismissed without further order of the Court by operation of Order 3. 4 The application for reinstatement was listed for a case management hearing on 9 March 2022. At that hearing I ordered submissions and material on the question of reinstatement be filed. Submissions were received from both the applicant and the respondent. BACKGROUND 5 This proceeding has a long and complex procedural history. 6 It was commenced by Mr Matson filing a notice of appeal on 16 November 2020 against the decision of Rangiah J (primary Judge) in Matson v Attorney-General [2020] FCA 1558. In that case his Honour dismissed Mr Matson's application for judicial review, recusal, adjournment, discovery and the re-opening of evidence in respect of the Commonwealth Attorney-General's decision that Mr Matson be surrendered to the United States pursuant to s 22(2) of the Extradition Act 1988 (Cth)(Extradition Act). 7 At the first case management hearing held in this appellate matter, on 11 March 2021, I made orders requiring Mr Matson to file a supplementary notice of appeal by 4.00 pm on 8 April 2021. 8 At the case management hearing before me, on 9 July 2021, the time for Mr Matson to file a supplementary notice of appeal was extended to 30 September 2021, with a self-executing order included in the terms outlined at [1] above. At that case management hearing Mr George Pharmacis of Pharmacis Canning Lawyers appeared for Mr Matson and consented to the self-executing order being made. 9 On 28 September 2021, Mr Pharmacis emailed the Federal Court Registry seeking an extension of six weeks to file a supplementary notice of appeal. He wrote: Dear Associate, Our offices act for Mr Baron Philip Matson (dob 16/09/1977) in the above matters. We are respectfully seeking to urgently list this matter on for a mention to seek leave of the Court to extend the filing deadline for 6 weeks given the deadline for filing was 30 September 2021. As outlined in the below emails, our offices have had to retain new Counsel, Ms Lisa De Ferrari, due to unforeseen circumstances. Counsel will need the further 6 weeks to settle the further amended outline of appeal in accordance with Her Honours directions. Our offices are proposing the following dates: 4pm on 11 November 2021 appellant file and serve Further Amended notice of appeal and draft index of appeal book A and B; 4pm 15 November 2021 appellant file and serve submissions with respect of further amended notice of appeal, together with Part A and B of Appeal Book; 4pm on 2 December 2021 respondent file and serve submissions in respect of the further amended notice of appeal; 4pm on 8 December 2021 appellant file and serve part C of appeal book. 4pm on 14 December 2021 parties file and serve hyperlink list of authorities. Counsel has availability this week or next week for a mention to be called and has confirmed she is in a position to comply with the above dates. 10 This application for an extension of time was heard by Reeves J as duty Judge on 30 September 2021. At that hearing Ms De Ferrari SC of Counsel appeared for Mr Matson to press the application for an extension of time, as well as the removal of the self-executing order. By orders dated 1 October 2021, his Honour allowed the extension of time but refused to vacate the self-executing order. In doing so, the time for Mr Matson to file a supplementary notice of appeal was extended to 5 November 2021. 11 No supplementary notice of appeal was filed on behalf of Mr Matson by that date, and as such this proceeding automatically stood dismissed. 12 In a related matter, namely proceeding QUD83/2021, on 8 November 2021 the respondent's legal representative wrote to Mr Pharmacis seeking that QUD83/2021 be listed for case management, and noted that proceeding QUD356/2020 had been dismissed by operation of the self-executing order. 13 The respondent submitted that on 9 November 2021 Mr Pharmacis sought the respondent's consent to a further extension of time to file an amended notice of appeal on Mr Matson's behalf in QUD356/2020, and advised that: The QC in this matter has advised that she believed she had until 10th November to file the appeal. We have now corrected her on this but she is currently before the Courts in another matter. Counsel further advises she will attend to the appeal as soon as she finishes Court. 14 By 10 November 2021 no supplementary notice of appeal had been filed. 15 A case management hearing in proceeding QUD83/2021 was held on 18 November 2021, with Ms De Ferrari appearing for Mr Matson. At that hearing Ms De Ferrari said, in relation to QUD356/2020, that "it's gone because of my mistake". She also indicated that an application for reinstatement of this proceeding would be forthcoming. 16 At a case management hearing held on 9 March 2022 in QUD356/2020 (concurrently with case management and an interlocutory hearing in QUD83/2021), Ms De Ferrari appeared. She stated that she appeared amicus curae, and not as counsel for Mr Matson, on the basis that it was her error that had led to the self-executing order becoming operative. In this context she said: So what I'm saying and what I explain to Ms – what I'm saying is that I'm here to say that that's the material that has been filed and Mr Matson relies on that to reinstate the appeal. I can't argue given that, in a sense, I have given – or it is the evidence of my conduct, I suppose, that's the basis for I can't act for him except as an amicus to, sort of, say he wants to reinstate it, and that's the basis of the appeal. 17 At that hearing oral submissions were made in relation to case management of the interlocutory application filed by Mr Matson on 14 February 2022. Noting that I had earlier made orders that no party should file any material in QUD356/2020 without leave of the Court, Mr Matson sought leave to rely only on proposed orders 1, 2 and 3 of that interlocutory application. I granted leave for Mr Matson to rely on proposed orders 1, 2 and 3, and in light of the case as finally pressed by Mr Matson I refused leave for Mr Matson to rely on proposed orders 4, 5 and 6. (I note that proposed orders 4, 5 and 6 concerned an injunction to restrain the Court from giving effect to orders dated 9 July 2021, the recusal of myself from this proceeding, and that this proceeding being listed for further case management with proceeding QUD83/2021). 18 Mr Matson also stated that he was no longer pressing his interlocutory application dated 18 February 2022 and filed in QUD83/2021. Accordingly, I also refused leave for him to rely on that interlocutory application. 19 The interlocutory hearing in respect of proposed orders 1, 2 and 3 (dealing, substantively, with reinstatement of QUD356/2020, and being the subject of the present judgment) was listed at 10.15 am on 23 March 2022. SUBMISSIONS 20 At the hearing of 23 March 2022 Mr Matson appeared in person. Both he and the Attorney-General (who was represented) also relied on written submissions filed in accordance with case management orders. 21 In summary, Mr Matson argued that his appeal in QUD356/2020 should be reinstated because: the Court has the power to reinstate this proceeding; none of the respondent's authorities relied upon in opposing reinstatement were analogous to Mr Matson's present situation, namely relating to extradition and "the removal of an Aboriginal person from Australia"; extradition proceedings are a process by which Australian citizens are removed from Australia to face criminal proceedings in other countries; an "additional level of scrutiny and gravity" should apply to Mr Matson's situation given that "as an Indigenous person" he has "a special connection to Australia"; the further Amended Supplementary Notice of Appeal, which had not been accepted for filing, demonstrates there was merit to his appeal; and it was proper for the Full Court to hear and determine this appeal. 22 The respondent opposed the application for reinstatement, submitting in summary: Given that Mr Matson had consented to the self-executing orders in this proceeding, it should not now be open to him to complain of the consequences of non-compliance with those orders (or claim that an injustice had arisen): Tenement Administration Services Pty Ltd v Hodson [2013] FCA 610 at [39]. This is especially the case given that Mr Matson was given an extension of time in which to comply with orders dated 9 July 2021; There is a need for parties involved in litigation, and the public at large, to have confidence in orders made by the Court: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. To allow these proceedings to be reinstated four months after they stood dismissed would not engender confidence in any aspect of judicial decision making; Mr Matson had not filed any admissible evidence explaining the failure to comply with the self-executing order, or why no supplementary notice of appeal was filed or attempted to be filed until six days before the hearing of the interlocutory application to reinstate. Nor had it been shown that it was in the interests of justice to reinstate the appeal despite the "apparent error by Counsel"; Mr Matson had taken a casual approach to compliance with orders of the Court, which is incompatible with the obligations imposed by ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth)(Federal Court Act); Costs were not an adequate remedy to compensate the respondent for Mr Matson's failure to comply with orders, and the respondents would be prejudiced if the appeal were reinstated; If Ms De Ferrari had been mistaken as to the date by which the amended supplementary notice of appeal was to be filed, then the amended supplementary notice of appeal would have been filed on 10 November 2021. There was also no affidavit or statutory declaration from Ms De Ferrari (despite Mr Matson referring to a statutory declaration in his written submissions) explaining her alleged error; Mr Matson's contention pertaining to the authorities relied on by the respondent, to the effect that they were not analogous to his present circumstances owing to his Indigenous heritage, is not a proposition that can, or should, be entertained by the Court. Mr Matson, despite his claimed heritage, is bound by orders of the Court in extradition, and any other proceedings, as is any person regardless of race or religion; The fact that Mr Matson asserts he is of Indigenous heritage in no way circumvents the operation of ss 37M and 37N of the Federal Court Act; The fact that Mr Matson indicated that he would seek leave to appeal in the High Court of Australia was irrelevant, as any decision made by this Court with respect to reinstatement would not be appealable to the High Court in light of s 33(4B)(d)(iii) of the Federal Court Act. In any event, the question of whether Mr Matson can appeal to the High Court of Australia was irrelevant for the purpose of deciding his application for reinstatement; and Mr Matson's proposed grounds of appeal have no merit. CONSIDERATION Relevant principles 23 The power to reinstate an appeal from a decision of a Judge of this Court where the appeal stood dismissed by self-executing order, stems from s 25(2B)(bc) of the Federal Court Act. Section 25 provides as follows: 25 Exercise of appellate jurisdiction (1) The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court. (2B) A single Judge (sitting in Chambers or in open court) or a Full Court may: (a) join or remove a party to an appeal to the Court; or (aa) give summary judgment; or (ab) make an interlocutory order pending, or after, the determination of an appeal to the Court; or (b) make an order by consent disposing of an appeal to the Court (including an order for costs); or (ba) make an order that an appeal to the Court be dismissed for want of prosecution; or (bb) make an order that an appeal to the Court be dismissed for: (i) failure to comply with a direction of the Court; or (ii) failure of the appellant to attend a hearing relating to the appeal; or (bc) vary or set aside an order under paragraph (ab), (ba) or (bb); or (bd) give directions under subsection 37P(2); or (c) give other directions about the conduct of an appeal to the Court, including directions…. (emphasis added) 24 A self-executing order resulting in dismissal of proceedings is a matter of utmost seriousness. Such an order can be varied in the interests of justice: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268. In Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203 at [106], French J (as his Honour then was) set out the considerations relevant to the Court's discretion to vary self-executing orders for the purposes of reinstating a proceeding. These are: the seriousness of the non-compliance; the reason for the non-compliance; the history of delay or breach of orders in the past on the part of the applicant; any prejudice to the applicant arising from the dismissal of the proceedings; any prejudice to the respondent from permitting the proceedings to continue; and the authority of the Court. 25 These criteria are relevant, but not determinative. The exercise of the power to reinstate is discretionary: Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381 at [13] per Goldberg J; Soh v Commonwealth [2009] FCA 32 at [10] per Tamberlin J. 26 While French J identified a number of relevant considerations in determining whether a proceeding, dismissed by means of self-executing order, should be reinstated, Flick J noted in Skinner v Commonwealth of Australia [2012] FCA 1194 that: 11. In the absence of any express constraints imposed upon the manner in which the discretion conferred by r 1.39 is to be exercised, it would be unwise and inappropriate to attempt any exhaustive identification of considerations relevant to the exercise of that power. The power is to be exercised by reference to the facts and circumstances of each individual case. 27 In Chen v Monash University (2016) 337 ALR 525, the Full Court considered the power to reinstate an appeal following its dismissal (in that context as a result of a notice of discontinuance being filed). Their Honours held: [41] We consider that under such an implied power, or pursuant to s 23, this Court may, in an appropriate circumstance, reinstate a discontinued appeal in order to prevent an abuse of process of the Court or to protect the integrity of those processes. [42] It follows that we do not consider that the Court is possessed of an implied or express power simply to reinstate a discontinued appeal in "the interests of justice". [43] The Court in Christodoulou appears to have come to a similar conclusion so far as the existence of an implied power to reinstate an appeal is concerned. While inexactly referring to the Court's jurisdiction as an "inherent" one, and while referring to English precedent drawn from common law courts, the Court nonetheless considered that an implied power, as we would understand it, exists to reinstate an appeal. 28 Their Honours concluded: 54. In this case, as discussed further below, we do not consider that the applicant has demonstrated that she discontinued the Appeal Proceedings otherwise than by a deliberate and informed decision on her part. Certainly, no abuse of the Court's process is identified. The power to prevent an abuse of the Court's process is not enlivened. Further, and in any event, we consider that, had the power to reinstate been enlivened, the prospects of success of the proposed appeal are so low that it would not be appropriate to exercise the power in the applicant's favour. 29 In Skinner, Flick J considered an application for reinstatement, to be effected if successful by means of extending the time for compliance with self-executing orders by the applicant. At [8] his Honour recognised r 1.39 of the Federal Court Rules 2011 (Cth)(Federal Court Rules) as one basis for the power to reinstate an application. It provides: Extension and shortening of time The Court may extend or shorten a time fixed by these Rules or by order of the Court: (a) before or after the time expires; and (b) whether or not the application for extension is made before the time expires. 30 The reinstatement of a proceeding, by way of an extension of the time to comply with a self-executing order, should be viewed as "in the nature of an indulgence": Bishop v R (1982) 58 FLR 233 at 235 per Deane J. Further amended supplementary notice of appeal 31 On 17 March 2022 Mr Matson wrote to the Federal Court Registry seeking to file, inter alia, a further amended supplementary notice of appeal (FASNOA) referable to the decision of primary Judge and the appeal in proceeding QUD356/2020. While orders were in place preventing the filing of material without any further order of the Court, I allowed Mr Matson to rely on the FASNOA at the interlocutory hearing on 23 March 2022. The FASNOA contained the following grounds of appeal: New grounds of review not before the primary Judge (1) The former Attorney-General, the Honourable Christian Porter M.P. (Mr Porter) failed to revoke, reconsider and remake the surrender decision dated 1 February 2019 made by the then Acting Attorney-General, the Honourable Greg Hunt M.P. Particulars (a) The Appellant in August 2020 requested that Mr Porter revoke, reconsider and remake the surrender decision dated 1 February 2019, citing the escalation of the COVID-19 pandemic in the United States of America (USA), that the Acting Attorney-General had not properly considered the Appellant's "special connection" to Australia as an Aboriginal man, and that the Acting Attorney-General had not considered additional documents that were in the possession of the Attorney-General's Department but had only come to light after the surrender decision was made, however, Mr Porter misapprehended the law and erroneously viewed his powers under the Extradition Act 1988 (the Act) by advising the Appellant that he had "no power" to reconsider or remake an s 22 surrender determination under the Act, when the Attorney-General did have such a power, which evinces that Mr Porter did not tum his mind to the question of whether or not to exercise his power to reconsider or to the issues raised by the Appellant, thereby acting on a misapprehension of the law; (b) a fundamental incident of being an Indigenous Australian, is that the Commonwealth Government will, in making any administrative decision in relation to First Nations People, consider that fundamental incident and the unique rights and interests of First Nations People (and how those rights and interests might be affected by the decision), which includes their "special connection" to country, which is an implied mandatory consideration derived from the object, subject and purpose of the Act, including under s 22(3)(f) and under s 11 and s 22(3)(e) of the Act which requires the terms of the USA/Australia Extradition Treaty (the Treaty) be observed, including Article V of the Treaty, which as the Appellant's "special connection" to Australia was not considered by the Acting Attorney-General when making the surrender decision dated 1 February 2022, Mr Porter was obliged to reconsider, revoke and remake the surrender decision when that fact was brought to his attention in August 2020 by the Appellant, so as to ensure that surrender of the Appellant was "proper to do so" in accordance with the terms of s 22(3)(f) of the Act and Article V of the Treaty pursuant to s 11 and s 22(3)(e) of the Act; and (c) a fundamental incident of being an Australian citizen that the Commonwealth Government will protect its nationals (especially First Nations People) from a risk of death, danger and harms way, including in examples such as world war or a global pandemic (i.e. the COVID-19 pandemic), and pursuant to the terms of Article V of the Treaty and its operation pursuant to s 11 and s 22(3)(e) of the Act, which require the Attorney-General in exercising the discretion to surrender its citizens to consider that fundamental incident as an implied mandatory consideration so as to reasonably form the opinion or requisite state of satisfaction that, surrender of an Australian citizen in the individual circumstances is "proper to do so", including in circumstances where a decision to surrender has already been made pursuant to s 22 of the Act, the terms of the Treaty continue to remain binding on the Attorney-General until the surrender warrant has been executed, such that if circumstances change prior to the surrender warrant being executed, the Attorney-General retains the discretionary power to revoke, reconsider and remake an existing s 22 determination, and in circumstances where it becomes apparent that surrendering an Australian citizen is no longer "proper to do so", the Attorney-General would be obliged to revoke, reconsider and remake an existing s 22 determination, which obligation arose in the Appellant's case. Grounds of appeal (2) The primary Judge erred by dismissing the Appellant's interlocutory applications dated 29 June 2020 (6 July Discovery Application) and 10 July 2020 (16 July Reopening Application) which interlocutory applications had both sought orders to re-open QUD107/2019 to allow further submissions and a further hearing, by failing to consider that the Appellant had indicated that he needed to make submissions about the case of Love v The Commonwealth (2020); Thoms v Commonwealth of Australia [2020] HCA 3; 270 CLR 152 (Love and Thoms), after the primary Judge had given the Appellant an assurance during the substantive hearing on 18 November 2019 that he would allow the Appellant to make submissions about the relevance of High Court's judgment in Love and Thoms if the High Court's judgment was handed down prior to the delivery of the primary Judge's judgment. See paragraphs [386]-[403] and [423]-[426] of the primary Judge's Reasons. (3) The primary Judge acted unreasonably and denied the Appellant procedural fairness by not allowing the Appellant the opportunity to make submissions about the High Court's judgment in the case of Love and Thoms, particularly after the primary Judge had indicated that he would allow the Appellant to do so if he wanted. See paragraph [37] of the primary Judge's Reasons, where his Honour stated that "I indicated that Mr Matson could make written submissions if the High Court's judgment was handed down prior to the delivery of my judgment". (4) The primary Judge erred in finding that the Respondent's decision was not tainted by unreasonableness, or was seriously irrational and illogical due to the Respondent misconstruing Article V of the Treaty by failing to properly form the opinion or requisite state of satisfaction that surrendering the Appellant to the USA was in fact "proper to do so" in the Appellant's individual circumstances, particularly in view of the Appellant's "special connection" to Australia as a First Nations Person, which "special connection" had to be considered by the Attorney-General so as to reasonably form the opinion or requisite state of satisfaction that surrendering the Appellant to the USA was in fact "proper to do so". See paragraphs [199]-[202] of the primary Judge's Reasons [Ground (p) of Appellant's Draft Amended Originating Application dated 4 November 2019]. (5) The primary Judge erred in finding that "The Attorney-General considered Mr Matson's Indigenous heritage and the consequences and likely hardships of extradition" when plainly the Appellant's Indigenous heritage and the consequences and likely hardships of extradition were not properly considered by the Attorney­General. See paragraph [198] of the primary Judge's Reasons [Ground (o) of Appellant's Draft Amended Originating Application dated 4 November 2019]. (6) The primary Judge erred in relation to the Appellant's argument at Ground (v) by finding at paragraph [218] that "the Attorney-General was not bound to take any "spiritual connection" (or special connection) into account when exercising the discretion under s 22(3)(f) of the Extradition Act", and by finding at paragraph [220] that "the Attorney-General's decision was not one that no reasonable person could have made, and that Ground (v) has not been established". See paragraphs [215]-[220] of the primary Judge's Reasons [Ground (v) of Appellant's Draft Amended Originating Application dated 4 November 2019]. (7) The primary Judge erred in relation to the Appellant's argument at Ground (v) by failing to make a finding and by failing to adequately recognise that Ground (v) was also alleging that the surrender decision was unreasonable by virtue of the Attorney­ General failing to consider the Appellant's "special connection" to Australia in exercising the discretion provided under Article V of the Treaty. See paragraphs [215]-[220] of the primary Judge's Reasons [Ground (v) of Appellant's Draft Amended Originating Application dated 4 November 2019]. (8) The primary Judge erred in relation to the Appellant's argument at Ground (mm)(iv) by finding that "Mr Matson's race and the consequences and hardship he would face if surrendered, including his separation from Australia, were considered." when nowhere in the Departmental Advice was the Appellant's race and the consequences and hardship as an Aboriginal man considered, nor was the issue of separation from country and culture considered, contrary the finding of the primary Judge that separation from Australia had been considered. See paragraph [228] of the primary Judge's Reasons [Ground (mm)(iv) of the Appellant's Draft Amended Originating Application dated 4 November 2019]. (9) The primary Judge erred in relation to the Appellant's argument at paragraph 10 Ground (k) by finding that "... However, Mr Matson has not otherwise made submissions regarding any implied constitutional right for Indigenous people to not be removed from Australia that is said to arise from the decision in Love and Thoms" when the Appellant had not been given an opportunity to make submissions about the case of Love and Thoms as the primary Judge had not made orders re­ opening proceeding QUD107/2019 to allow further written submissions and/or a further hearing to make oral submissions. See paragraphs [347]-[348] of the primary Judge's Reasons [paragraph 10 Ground (k) of Appellant's Draft Amended Originating Application dated 4 November 2019]. Application for adjournment 32 At the interlocutory hearing held on 23 March 2022, Mr Matson appeared in person. He did so (rather than appear remotely) at his request, noting that he had made numerous separate requests to appear in person in this, and other, proceedings before this Court. I note that a number of these requests had earlier been refused by the Court owing to the COVID-19 pandemic, and the effect appearances in person had on the Court's operation. 33 At the commencement of the interlocutory hearing Mr Matson sought an adjournment for 14 days to allow him to: provide return correspondence to the Attorney-General's Department in respect of the issue of question of assurance that the surrender warrant would not be acted upon until these proceedings, and those of QUD83/2021, had concluded, including any appeal period; liaise with the High Court Registry to identify whether or not there was an avenue for special leave to appeal; subpoena Ms De Ferrari to appear in these proceedings, and/or allow her sufficient time to provide a statutory declaration addressing the events surrounding the dismissal of this proceeding; secure a referral certificate for pro bono counsel; and minimise prejudice to him. 34 I refused this application for adjournment. I noted in particular that: While Mr Matson is a litigant in person, and constrained by being in custody pending extradition, nonetheless – as is apparent from the history of litigation in which he has been involved – he clearly has some knowledge of process in the Federal Court. I am also satisfied, from his previous litigation in related cases where he has made adjournment applications, that Mr Matson is well aware of principles referable to such last-minute applications: see for example Matson v Secretary, Attorney-General's Department [2021] FCA 1027 at [97]-[99]; Matson v Attorney-General (No 2) [2022] FCA 213 at [4]-[7]. Mr Matson's adjournment application was made at the commencement of the interlocutory hearing, and as a result a very high threshold had to be met in order to prove that such an adjournment was necessary: Zetta Jet Proprietary Limited v The Ship "Dragon Pearl" [2018] FCA 878 at [38] citing AON Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, 179. Orders dated 9 March 2022 listed this matter for interlocutory hearing on 23 March 2022. It necessarily followed that Mr Matson knew that this matter had been listed for hearing, and had ample time to organise his case, including referable to the evidence of Ms De Ferrari, in one way or another. In particular: • Mr Matson's written submissions filed on 17 March 2022 referenced, on multiple occasions, "the statutory declaration of Ms de Ferrari (unknown date)". Mr Matson stated at the hearing that he did not have a copy of this alleged statutory declaration. I note that Ms De Ferrari appeared in court on 9 March 2022, and to that extent would have been aware of the hearing date of the reinstatement application. To the extent that Mr Matson sought adjournment of the hearing by reference to potential assistance from Ms De Ferrari, I consider his application lacks substance. That Ms De Ferrari had not given a statutory declaration, or appeared (as amicus curiae or otherwise) at the hearing of 23 March 2022, indicated that she had no intention of doing either. • In relation to Mr Matson's submission that he wanted time to subpoena Ms de Ferrari, no explanation was provided by Mr Matson as to why he had not sought to subpoena Ms De Ferrari prior to the interlocutory hearing. I note that, after a short adjournment, the respondent, through her Counsel. Mr McKechnie, gave an undertaking that any surrender warrant would not be acted upon until these proceedings, and those in QUD83/2021, had concluded, including any appeal period. To that extent, Mr Matson's concerns regarding any immediate action by the respondent on the surrender warrant had been addressed. 35 I note that, notwithstanding my refusal to adjourn the hearing, Mr Matson was able to make detailed and well-formed submissions addressing his application over the course of several hours during the balance of the Court day. Reinstatement 36 Over the course of the hearing, it became clear that three key issues were critical to the determination of Mr Matson's interlocutory application for reinstatement. These were: (a) whether there was an explanation for the failure of Mr Matson to comply with the self-executing orders of 9 July 2021 as varied by orders of 1 October 2021; (b) prejudice to the respective parties should a reinstatement order be made (or refused); and (c) whether the prospects of success of Mr Matson's proposed appeal in QUD356/2020 were such that it would be appropriate to exercise the power to reinstate the appeal. 37 I now turn to consider each of these key issues. Explanation for the failure of Mr Matson to comply with the self-executing orders of 9 July 2021 as varied by orders of 1 October 2021 38 At the interlocutory hearing, Mr Matson explained at length that an amended notice of appeal was not filed in accordance with the self-executing orders because of a diary error on the part of Ms De Ferrari, and because he was unaware until 18 November 2021 that an amended notice of appeal had not been filed. There was no affidavit evidence from Ms De Ferrari supporting this assertion. The only evidence before the Court at this interlocutory hearing were: statements by Mr Matson from the Bar Table; and affidavit evidence of Mr Matson setting out his claims in relation to alleged failings of Ms De Ferrari. 39 When Mr Matson made statements from the Bar Table, I asked him whether he would be willing to give evidence from the witness box, such that his oral and affidavit evidence could be tested as sworn evidence (to the extent that his evidence was relevant and not hearsay). Mr Matson declined to enter the witness box. I warned Mr Matson of the possible consequences of his refusal to do so: HER HONOUR: Well, it's simply – Mr McKechnie will ask you questions. If there are any issues with questions he's asking you which you aren't comfortable – are uncomfortable with you don't have to answer them, but then Mr Matson will ask the court – sorry – Mr McKechnie will ask the court to draw inferences. If I'm uncomfortable with the way in which Mr McKechnie is asking you questions I will stop him. You're not the first litigant in person to be in the witness box and be asked questions by lawyers for the other side. But I repeat – I don't want to keep saying this and I don't want to drag this out further than it already has – Mr McKechnie has already said he – has already intimated he's going to make submissions to me to say I should not accept some of the statements you have made unless he can test them in the witness box. That is common. It happens all the time. (transcript p 38-39) 40 Mr McKechnie did submit that inferences should be drawn from Mr Matson's refusal to give sworn evidence. In respect of events giving rise to the non-compliance, and following Mr Matson's explanation of those events, Mr McKechnie made the following submissions: MR MCKECHNIE: I, obviously, can't concede anything about the contents of that evidence. My submissions are unchanged, that even from those paragraphs, there remains no direct evidence explaining what has happened in – you know, even that evidence itself raises more questions than answers in my submission. Supposedly, Ms de Ferrari assures Mr Matson that she is going to get around to filing that document. And your Honour will recall then that we had a directions hearing on the 18th in proceeding 83. HER HONOUR: Yes. MR MCKECHNIE: And nothing happened. And I place significant reliance on the fact that if this was a simple diary error then we would have had an amended notice of appeal in early November. We wouldn't have gone through the summary judgment process in proceedings 83. We would have had a chance to have this matter, depending on what the notice of appeal looked like, before earlier Full Court sittings, and had it done. And, instead, we don't even get a draft amended notice of appeal until after your Honour has summarily dismissed proceedings QUD83. And it's that lack of explanation that I place significant reliance on. I also… … MR MCKECHNIE: But I will also emphasise that the respondent filed submissions in response to an application to reinstate, on 8 March. And in those submissions that were filed on 8 March, we make it clear that there is no direct explanation from Mr Matson about the delay in coming up with an amended notice of appeal, and particularly in those submissions, we emphasise the issue of, well, if it was just a diary issue, why didn't we have it in November. HER HONOUR: Right. MR MCKECHNIE: So Mr Matson had those submissions on 8 March. Ms De Ferrari had those submissions on 8 March. And it seems, from Mr Matson's admissions that he made just then, that there has, at least, been an election or a forensic decision made to rely on the evidence that is currently before the court. (transcript pp 17-18) 41 As a general proposition, sworn evidence is entitled to be accorded greater weight than unsworn statements: see for example Karnafi v Minister for Immigration & Multicultural Affairs [1999] FCA 191; Scroope v Legal Services Commissioner [2013] NSWCA 178 at [39] et seq. Similarly, untested sworn evidence may be accorded less weight than that which is tested by cross-examination: see for example R v Qutami [2001] NSWCCA 353 at [58]; Dalac v R [2015] NSWCCA 121 at [105]; Mohammed v Minister for Immigration and Border Protection [2018] FCA 767 at [30]-[33] . 42 Further, to the extent that Mr Matson's evidence in respect of Ms De Ferrari's alleged conduct is sworn, it almost entirely hearsay, and to that extent inadmissible under s 59(1) Evidence Act 1995 (Cth). Little if any weight can be accorded to this evidence. 43 However, such limited evidence as is before me indicates that Mr Matson's legal representatives, in the words of the respondent at the interlocutory hearing, have "let him down" and "cut and run". I consider it likely that Mr Matson did, in fact, expect his lawyers (either solicitors or Ms De Ferrari) to file an amended notice of appeal (which they did not). When they did not, he did in fact expect them to provide an explanation (possibly as sworn evidence) supporting his application for reinstatement of the appeal (which, again, they did not). 44 While this mistaken belief does not wholly explain the failure of Mr Matson to file an amended notice of appeal in compliance with the self-executing orders, or indeed prior to 17 March 2022, it goes some way towards doing so. 45 In the circumstances, I am satisfied that there is a valid explanation for Mr Matson's failure to comply with the self-executing orders. He believed his lawyers intended to attend to obligations created by those orders. They did not. Prejudice to the respective parties should a reinstatement order be made (or refused) 46 Turning to the prejudice Mr Matson would face should his appeal not be reinstated, I am satisfied that this would be substantial. 47 First, I understand that this is Mr Matson's final matter before this Court challenging his extradition, in one way or another, to the United States to face criminal charges. The history of Mr Matson's litigation before me suggests that he strongly opposes his extradition to the United States. 48 Second, s 33 of the Federal Court of Australia Act relevantly provides: Appeals to High Court (1) … (2) … (3) … (4) … (4A) … (4B) An appeal must not be brought to the High Court from a judgment of the Court (whether constituted by a Full Court or a single Judge) in the exercise of its appellate jurisdiction if the judgment is: (a) … (c) … (d) a decision to do, or not to do, any of the following: (i) … (ii) … (iii) reinstate an appeal that was taken to have been abandoned or dismissed; 49 The interlocutory application before me seeks reinstatement of Mr Matson's appeal in QUD356/2020, which is taken to be dismissed by virtue of the self-executing orders. Section 33(4B)(d)(iii) of the Federal Court Act plainly precludes any appeal from a decision to either reinstate the appeal or refuse to reinstate it. As I have previously noted, I am currently exercising the appellate jurisdiction of the Federal Court. It follows that, for Mr Matson, dismissal of this interlocutory application by me will not be a decision which he can appeal. 50 This proceeding has been on foot since early 2021, and numerous interlocutory applications have been filed in relation to it. The respondent will suffer prejudice should I allow Mr Matson's appeal to be reinstated, given the ongoing delay in the proceedings and Australia's international law and treaty obligations. However, on balance, I consider that the prejudice Mr Matson would suffer, in the event of refusal of his application for reinstatement, is greater. Whether the prospects of success of Mr Matson's proposed appeal in QUD356/2020 are such that it would be appropriate to exercise the power to reinstate the appeal 51 Mr Matson's grounds of appeal, as contained in FASNOA, claim errors of the primary Judge in the following categories: 1. the alleged failure of the Attorney-General to properly take into account a relevant consideration, being Mr Matson's Indigenous heritage and the consequences and likely hardships of extradition (grounds of appeal 4, 5, 6, 7, and 8); 2. the alleged refusal by the Attorney-General to reconsider the surrender determination (ground of appeal 1); and 3. the application of the High Court's decision of Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 (Love and Thoms) (grounds of appeal 2, 3 and 9). 52 It is useful to consider each category and its associated grounds of appeal. 1. The alleged failure of the Attorney-General to properly take into account a relevant consideration, being Mr Matson's Indigenous heritage and the consequences and likely hardships of extradition (grounds of appeal 5, 6, 7, and 8) 53 At the conclusion of the interlocutory hearing I made orders that no further material was to be filed in this proceeding without leave. Following reservation of judgment on 22 March 2022, the Federal Court Registry on 25 March 2022 received correspondence from Mr Matson enclosing supplementary submissions relating to his Indigenous heritage and the decision of the Attorney-General. Mr Matson sought to file these supplementary submissions on the basis that he had made a "critical oversight" owing to having to rise at 5.00 am on the day of the hearing to attend court in person, as well as the length of the hearing. As a result Mr Matson felt that his "brain was a bit scrambled" and his "concentration was rattled", and he sought to make further submissions as follows: 2. My oversight was that I failed to make submissions or draw the Court's attention to the fact that the legal advice (Advice) provided to the Attorney-General in respect of the general discretion under s 22(3)(f) of the Extradition Act 1988 (Act) made no reference to either: a. my Indigenous heritage; and b. my "special connection" to Australia. 54 Principles to be applied where a Court is asked to accept further submissions after judgment has been reserved were explained in such cases as Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300 at 303 per Mason CJ; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 330 [29]-[31] per McHugh J (Gummow J agreeing at 330 [32]); [2003] HCA 28; Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41 at [30] (Nettle J); Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], [26]; Brown v Petranker (1991) 22 NSWLR 717 at 729; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478; Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338; (2004) 207 ALR 483 [121]; Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468 at [48]. In summary, leave to advance further submissions once judgment has been reserved should not be granted except in very exceptional circumstances: Eastman (2003) 214 CLR 318 at 330 [29] per McHugh J (Gummow J agreeing at 330 [32]). The primary consideration must be whether such an act would be in the interests of the administration of justice having regard to the circumstances of the case. A clear driver of this proposition is the public interest in the finality of litigation: De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 at 215; Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41 at [9]. 55 In Bradshaw, Kenny J broadly identified four categories of proceeding where leave should be granted to reopen after judgement has been reserved, namely those involving: Fresh evidence; Inadvertent error; Misapprehension of facts; and Mistaken apprehension of law. 56 Notwithstanding these considerations, of importance in this context are the civil practice and procedure provisions provided by ss 37M and 37N of the Federal Court Act. 57 From Chambers I granted Mr Matson leave to file and rely on the supplementary submissions he had forwarded to the Registry by his letter 25 March 2022, in light of: the proximity of Mr Matson's request to the reservation of judgment, that his proposed submissions were only three pages in length, and that these proposed submissions concerned a narrow issue and supplemented submissions Mr Matson had made at the hearing 58 I also made orders allowing the respondent to file short submissions in response. 59 Ultimately, however, I am not persuaded that there is merit in Mr Matson's submissions referable to grounds of appeal 5, 6, 7 and 8, either oral or written. 60 First, under s 22(3)(f) of the Extradition Act, the Attorney-General must consider that the person should be surrendered in relation to the offence, and has a general discretion whether to surrender an eligible person. There is clear authority to the effect that the discretion is unfettered, and the Attorney-General may, in the exercise of the discretion, take into account any matters, or no matters, provided that the discretion is exercised in good faith and consistently with the objects, scope and purpose of the Extradition Act: Rivera v Minister for Justice and Customs [2007] FCAFC 123 at [14]; Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156; (2014) 230 FCR 82 at [151] 61 Second, it necessarily follows that the Attorney-General was not bound to take into account any "spiritual connection" of Mr Matson as an Indigenous person, or indeed any consideration of heritage or characteristic of a person the subject of an extradition order, when exercising the discretion under s 22(3)(f) of the Extradition Act: Matson v Attorney-General (Cth) [2021] FCA 161 at [218]; Rivera; Snedden. 62 Third, as the primary Judge pointed out at [118], in any event Mr Matson's claimed Indigenous heritage was brought to the attention of the Attorney-General. In particular I note the following observation of his Honour: 117. The effect of Mr Matson's Indigenous heritage on his incarceration in the USA was addressed in the Departmental Advice to the Attorney-General, including as follows: 35. The department does not consider that there is a direct casual connection between any of the other factors identified by Mr Matson and the prejudice suffered at trial or punishment by way of race or nationality. In particular, the department notes the following: a. it is not apparent to the department that there is an established history in the US of persons being prejudiced at trial or punishment, detention or restriction in personal liberty by reason of their Australian nationality or indigenous heritage. (emphasis added) 63 Further, as the primary Judge noted: 197. Mr Matson's race was also considered in the context of the exercise of the discretion under Art V of the USA Extradition Treaty to refuse to surrender him. The Departmental Advice stated, "the department does not consider that Mr Matson's Australian citizenship or indigenous heritage warrants the exercise of your discretion to refuse to surrender him". 198. The Attorney-General was plainly aware that Mr Matson was of Indigenous heritage and that a decision to surrender Mr Matson would result in his removal from Australia. The Attorney-General was also aware that the maximum penalty was up to 20 years' imprisonment in respect of two of the qualifying extradition offences, so that Mr Matson could face a lengthy period of imprisonment in the USA if ultimately convicted. Mr Matson did not explain how or why his Indigenous heritage would make his removal to the USA and possible imprisonment more onerous for him. He did not explain how his Indigenous heritage would make his removal to the USA more onerous for his family or community. The Attorney-General considered Mr Matson's Indigenous heritage and the consequences and likely hardships of extradition. It has not been demonstrated that these factors were of such importance that the Attorney-General must have failed to give sufficient weight to them, or that the decision was otherwise unreasonable. The allegation of unreasonableness in Ground (o) has not been established. (emphasis added) 64 The primary Judge concluded: 220. However, the Departmental Advice specifically recommended, and the Attorney-General accepted, that Mr Matson's Indigenous heritage did not warrant the exercise of the discretion in his favour. The Attorney-General's decision provides an evident and intelligible justification for that position, namely the countervailing factor of the legitimate interest of the USA in pursuing Mr Matson's prosecution. The decision was not one that no reasonable person could have made. Ground (v) has not been established. 65 Mr Matson's submissions in support of grounds 5, 6, 7 and 8 merely assert error on the part of the primary Judge in respect of alleged failure on the part of the Attorney-General to consider Mr Matson's claimed Indigenous heritage. Mr Matson asserts that there is an unresolved question of law in respect of whether the primary Judge erred in relying on such cases as Rivera and Snedden by finding that Mr Matson's spiritual connection was not a mandatory relevant consideration. Other than by reference to the decision of the High Court in Love and Thoms, (to which I will shortly turn) Mr Matson has made no arguments of substance as to the findings of his Honour in respect of this issue, and why the decision of the Attorney-General to surrender Mr Matson for extradition was unreasonable in light of Mr Matson's "special connection" to Australia. 66 I am unable to identify any unresolved question of law arising from the primary judgment, referable to grounds of appeal 5, 6, 7 and 8, which would warrant Mr Matson's appeal being reinstated. 2. The alleged refusal by the Attorney-General to reconsider the surrender determination (ground of appeal 1) 67 Ground of appeal 1 (which is extensively particularised) is described in the FASNOA as a "New ground[s] of review not before the primary Judge". As the Full Court explained in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46]-[48] (recently followed in Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 at [79]), leave to argue a ground of appeal not raised before the primary Judge should only be granted if it is expedient in the interests of justice to do so. Ground of appeal 1 raises such questions as: whether the Attorney-General failed to revoke, reconsider and remake the surrender decision by reference to such matters as the applicant's "special connection" to Australia as an Aboriginal man (particulars (a) and (b)); whether the Attorney-General erroneously considered that there was "no power" to reconsider or remake an s 22 surrender determination under the Extradition Act (particular (a)); and whether the Attorney-General erroneously failed to recognise that, if circumstances change prior to a surrender warrant being executed such that it becomes apparent that surrendering an Australian citizen is no longer "proper to do so", the Attorney-General not only retains a discretionary power to revoke, reconsider and remake an existing s 22 determination but is obliged to do so (particular (c)). 68 I note that particular (c) to some extent overlaps with ground of appeal 4, wherein Mr Matson claims the Attorney-General's decision was unreasonable/irrational because the Attorney-General failed to consider whether surrendering Mr Matson for extradition was "proper to do so". It appears that the question whether the Attorney-General ought to have considered whether it was "proper" to surrender Mr Matson for extradition was considered (and rejected) by his Honour: at [85], [200] and [202]. 69 In considering Mr Matson's application of 19 August 2020 seeking an adjournment, the primary Judge noted at [436] that Mr Matson wanted an opportunity to receive a response from the Attorney-General to his letter of 11 August 2020 requesting that the surrender decision be reconsidered in light of the COVID-19 pandemic in the United States and in light of the certain documents that had apparently come to light. At [440] his Honour stated that he was not satisfied that Mr Matson's request that the Attorney-General reconsider the surrender decision was an adequate reason to adjourn the proceedings. It is unclear however to what extent the issue of the power of the Attorney-General to revoke, reconsider and remake a surrender decision was otherwise argued before his Honour outside the parameters of the adjournment application. 70 To that extent, it may well be that Mr Matson would require leave to press this aspect of ground 1. 71 However, as the respondent correctly submitted, nothing in the Extradition Act suggests that the validity of a surrender determination made in 2019 is conditional upon a request that it be revoked, reconsidered and remade in August of 2020, or on the basis of events (including the onset of the COVID-19 pandemic) that transpired after the extradition decision was made. Justice White so found in Matson v Attorney-General (Cth) [2021] FCA 161, and I agreed in Matson v Attorney-General (No 2) [2022] FCA 213. In this respect I further note that: as I have already observed, such authorities as Rivera and Snedden establish that the discretion of the Attorney-General in respect of the exercise of the discretion under s 22(3) of the Extradition Act is unfettered; as White J pointed out in Matson v Attorney-General (Cth) [2021] FCA 161 at [191], given the unfettered discretion of the Attorney-General, even if the Attorney‑General does have a power to reconsider and revoke a s 22 decision, the Attorney‑General could not be compelled to exercise it, much less exercise it in Mr Matson's favour: Rivera. as White J also explained in Matson v Attorney-General (Cth) [2021] FCA 161 at [192] in respect of similar arguments put by Mr Matson in those proceedings, such matters as the COVID-19 pandemic and Mr Matson's claimed spiritual connection with Australia are not matters which could compel the Attorney‑General to revoke the s 22 Decision, as they are not matters which the Extradition Act requires to be considered in the making of a surrender determination. 72 I consider that even if leave were granted, ground of appeal 1 lacks merit. 3. The application of the High Court's decision of Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 (Love and Thoms) (grounds of appeal 2, 3 and 9) 73 The crux of Mr Matson's application for reinstatement concerns the decision of the High Court of Australia in Love and Thoms. Mr Matson contended that the primary Judge erred in refusing to re-open proceedings to allow him to make submissions as to the application of Love and Thoms to the primary proceeding. He stated: I further submitted that I believed that the evidence of Love and Thoms is critical to my case and that due to the High Court's judgment not being handed down until 2020 I had not been able to make the submissions I wanted to. I first submitted that I wished to make clear that I withdraw the submissions made by previous legal representative about the relevance of Love and Thoms and that I need to make submissions about Love and Thoms. (transcript 23 March 2022 p 59 ll 36-41) 74 Mr Matson continued: If we can take that additional step of, if it's a mandatory implied consideration, to consider the fundamental incident of being an Australian citizen is to consider their right to remain in Australia. But if we take the small step to say, "Well, it's a fundamental incident being a First Nations person to enjoy your unique rights and interests", well, I say that all of those grounds have merit. And I believe that it would expedient in the interest of justice to make the order to reopen – make the order to reinstate the appeal. And I refer to another paragraph of Lobban, which was in respect of leave should be granted. Because in the case of Lobban, one of those grounds in the case of Lobban were before the – the primary judge at first instance. And the paragraph I referred you is paragraph 70. And in - - - (transcript 23 March 2022 p 63 ll 1-10) 75 The case of Lobban to which Mr Matson referred was, I understand, the decision of the Full Court in Lobban v Minister for Justice [2016] FCAFC 109. In particular I understand that Mr Matson relied on comments of Charlesworth J in that decision. 76 Mr Matson contended, in summary, that: his connection as an Indigenous Australian, as found in Love and Thoms, was an essential consideration that the Attorney-General should have taken into account in issuing a surrender warrant under the Extradition Act; his connection as an Indigenous Australian was a ground on which the Attorney-General should have revoked, reconsidered and remade the surrender determination; the authorities of Rivera and Snedden, which provide that the Attorney-General's discretion to issue a surrender warrant is unfettered, were not applicable to his case owing to his Indigenous background; and in light of these arguments, his interlocutory application for reinstatement of the appeal should be successful to allow consideration and determination by the Full Court. 77 I have already set out what I understand to be relevant legal principles referable to the merits of Mr Matson's grounds of appeal 1, 4, 5, 6, 7 and 8. An overlapping issue of importance in the present context is whether there is merit to Mr Matson's contention that the decision in Love and Thoms has overtaken those legal principles in respect of persons of Indigenous heritage. 78 That Indigenous Australians have a special connection to their traditional lands and waters has been legally recognised since the 1990s concurrently with the enactment of the Native Title Act 1993 (Cth) and such landmark decisions as Mabo and Others v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1; The Wik Peoples v State of Queensland; The Thayorre People v State of Queensland [1996] HCA 40; (1996) 187 CLR 1. The respondent did not dispute this proposition. Rather, the respondent contended that it is settled law that the Attorney-General's discretion in making a surrender determination is unfettered. As such the Attorney-General could not be compelled, and was not required, to take into account Mr Matson's Indigenous heritage. 79 Further, the respondent submitted that the nature of an Indigenous Australian's spiritual connection to country was not invented by Love and Thoms, rather it has been accepted in a wide range of cases. In any event, the respondent submitted that the Attorney-General took into account Mr Matson's claims of Indigenous heritage, but nonetheless made the surrender determination regarding Mr Matson under the Extradition Act. 80 In Love and Thoms special cases were stated for the opinion of the High Court, being whether each of the plaintiffs in those proceedings was an "alien" within the meaning of s 51(xix) of the Constitution. Section 51(xix) relevantly provides that the Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to naturalization and aliens. Both the Migration Act 1958 (Cth)(Migration Act) and the Australian Citizenship Act 2007 (Cth) were enacted pursuant to s 51(xix). 81 The plaintiffs in those proceedings were born overseas, and were citizens respectively of Papua New Guinea and New Zealand. They were not Australian citizens, but held Australian residency visas. They contended that they had a special status as a "non-citizen, non-alien" because although they were non-citizens, they could not be aliens because they were Aboriginal persons. 82 The visas of both plaintiffs were cancelled by a delegate of the Minister for Home Affairs under s 501(3A) of the Migration Act, which required the Minister to cancel a person's visa if the person has been convicted of an offence for which a sentence of imprisonment of 12 months or more is provided. At that point the plaintiffs became unlawful non-citizens and were liable to be removed from Australia. 83 The majority of the High Court found that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2]) were not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution. Accordingly, as Aboriginal Australians the plaintiffs in Love and Thoms were not within the reach of the "aliens" power, and although they were not citizens, no power of deportation existed in respect of them being non-citizen (but non-alien) Aboriginal Australians. 84 A number of immediate problems arise in respect of this aspect of Mr Matson's case. 85 First, the legal foundations of the legislation considered in Love and Thoms, and those relevant in the present case, are different. As I have already noted, Love and Thoms concerned the question whether Indigenous Australians were "aliens" within the meaning of s 51(xix) of the Constitution. In contrast, the Extradition Act was enacted pursuant to s 51 (xxix) of the Constitution, namely the external affairs power. As Gleeson CJ observed in O'Donoghue v Ireland [2008] HCA 14 in discussing the Extradition Act: 1. …Extradition of alleged or convicted offenders to and from Australia is a matter which closely affects Australia's foreign relations. It commonly involves considerations of reciprocity. Australia's foreign relations are conducted by the Commonwealth, but State judicial officers are involved in the administration of extradition law. Part II of the Extradition Act establishes the procedures to be followed where a request for extradition of a person is made to Australia by an extradition country. The ultimate decision to surrender, where made, is a discretionary decision by the Attorney-General of the Commonwealth (s 22)…. 86 These principles were earlier the subject of more detailed consideration by Gleeson CJ in Vasiljkovic v Commonwealth [2006] HCA 40; 228 ALR 447 where his Honour explained: 6. Although the extradition of fugitive offenders is an executive act, it requires statutory authority. It cannot be exercised "except in accordance with the laws which prescribe in detail the precautions to be taken to prevent unwarrantable interference with individual liberty". As Barwick CJ pointed out in Barton v The Commonwealth, legislative authority is necessary for the surrender of a person to another country and to provide for custody and conveyance which are the common incidents of such surrender. Although international co-operation in the surrender of fugitives, typically based upon reciprocity, is commonly the subject of treaties, in Australia a treaty does not have the effect of law, and the interference with liberty necessarily involved in the apprehension and surrender of a person for extradition can lawfully occur only if undertaken in accordance with statute. Treaties, or other international arrangements, providing for extradition are made, and acts in fulfilment of obligations undertaken in those treaties or arrangements are implemented, by the Executive Government, but it is for the Parliament, by legislation, to confer the necessary authority required to make executive action lawful. The power to enact legislation upon the subject of extradition is conferred by s 51(xxix) of the Constitution, extradition being a matter of external affairs. 7. Treaties, and other international arrangements, on extradition have reflected certain concerns. Reciprocity is one. Another is the identification of the kinds of offence for which extradition may be sought. Political offences are commonly excluded. Extradition offences are usually limited to serious crimes. According to the principle of double criminality, the conduct constituting such an offence must also constitute a criminal offence according to the law of the surrendering State. Questions of possible penalty (particularly the death penalty) may call for attention. Assurances limiting the offences for which a surrendered person may be prosecuted are common. Whatever is agreed about such matters will be reflected in the necessary legislation. Typically, however, because of the nature of the concerns addressed by extradition arrangements, and the relationship between such concerns and a nation's foreign relations, the legislation will give the executive authority an ultimate discretion to refuse a request for surrender even if all necessary conditions are fulfilled[ (footnotes omitted) 87 Importantly, Gleeson CJ continued: 8. An issue of policy addressed by treaties or other arrangements, and legislation, is whether a State's obligation to surrender a fugitive may extend to a fugitive who is one of its nationals. Practice has varied. Professor Shearer has observed that Great Britain never officially favoured exclusion of a State's own nationals from extradition obligations, and that its first extradition treaty, which was with the United States in 1794, applied to all persons irrespective of their nationality. There would be a tension between the adoption of a territorial theory of criminal jurisdiction and a State's refusal in principle to surrender its own nationals. Unless a State that refuses to surrender its own nationals in respect of criminal conduct committed abroad intends to bring them to justice itself, (an obligation that could not be fulfilled if its own criminal jurisdiction were territorially based), then a fugitive can obtain sanctuary by returning from the place of a crime to his or her own country. Great Britain and many Commonwealth countries, including Australia, "do not reject in principle the extradition of their own citizens to foreign countries". There is nothing in the Act or the Regulations that seeks to attach any legal significance to the fact that the plaintiff was at the relevant time a citizen of Australia as well as of Serbia and Montenegro. This represents a legislative choice in keeping with past Australian practice, and with the practice of many, but not all, other nations. (emphasis added, footnotes omitted) 88 As the Full Court of the Federal Court later explained in Snedden v Republic of Croatia [2009] FCAFC 111: 3. …When a request for extradition is made, the [Extradition] Act attaches no legal significance to the fact that the person sought to be extradited is a citizen of Australia: Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614 at 619 per Gleeson CJ; at 634 and 642 to 643 per Gummow and Hayne JJ. See also: DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 279 to 280 per Kirby J, with whom Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ agreed. 89 In his notice of appeal Mr Matson does not challenge the Constitutional validity of the Extradition Act, or any of its sections, and in particular does not contend that Australian citizens cannot be the subject of extradition. But in summary he claimed in grounds of appeal 2, 3 and 9 that the Attorney-General's decision to surrender him for extradition was unreasonable by virtue of the Attorney-General failing to consider Mr Matson's "special connection" to Australia. He relies on the decision of Lobban to support this proposition. 90 In Lobban the appellant, a dual Australia-Canadian citizen, was accused of committing sexual offences contrary to the laws of Florida in the United States. In particular, the appellant there was accused of committing these offences from his home in Perth, Australia, over the internet. In October 2014, the Minister made a determination under s 22 of the Extradition Act to surrender the appellant to the United States. Mr Lobban sought to challenge the validity of the Minister's decision on a number of grounds, including the proper construction of Art V of the Treaty on Extradition between Australia and the United States of America (the Treaty) for the purposes of ss 22(3)(e) and s 22(3)(f) of the Extradition Act. Art V(1) of the Treaty relevantly provides as follows: (1) Neither of the Contracting Parties shall be bound to deliver up its own nationals under this Treaty but the executive authority of each Contracting Party shall have the power to deliver them up if, in its discretion, it considers that it is proper to do so. 91 On the basis of the language of Art V(1), Mr Lobban contended that the Minister was not bound to surrender him. Mr Lobban further asserted that conversely, as an Australian national, the Minister was bound not to surrender him to the United States, without making a positive decision to deviate from the norm of non-surrender, and only moving from the norm on the basis that it was proper to do so. 92 Mr Lobban further contended that, given the wording of Art V(1), the Minister had failed to give his Australian nationality stand-alone importance, and essentially begin his reasoning from the principle that Mr Lobban should not be surrendered as an Australian national. 93 This aspect of Mr Lobban's argument was rejected unanimously by the Full Court. The plurality of Siopis and Barker JJ concluded that Australian nationality was but one of a number of relevant considerations to which the relevant Minister may have regard in exercising the discretion in respect of a surrender determination. The characteristic of Australian nationality was not, in their Honours' view, of supreme status as submitted by Mr Lobban. Their Honours stated: 10. We do not accept Mr Lobban 's contention. In our view, the concluding words of Article V(1), do not alter the characterisation of Mr Lobban's Australian nationality to the elevated status contended for by Mr Lobban. In our view, Article V does no more than make the fact that the eligible person is an Australian national one of a number of relevant considerations to which the decision-maker is to have regard in exercising his or her discretion whether to make the surrender determination. Article V(1) does not, in our view, mandate the making of a decision to refuse to surrender the eligible person, unless the decision-maker has made a positive and discrete determination to the contrary, on the grounds that it was "proper" to surrender Mr Lobban . 94 Relevantly, their Honours continued: 11. It is apparent from para 31 of the departmental brief that the Minister took into account, and had regard to, the fact that Mr Lobban was an Australian citizen but, nevertheless, decided that that factor was not sufficient, when considered by reference to the other circumstances, to constitute the basis upon which to decline to make the surrender determination. 95 Before me however, Mr Matson relies on the separate judgment of Charlesworth J, in particular paras [104]-[106], for his submission that the Court on appeal could and should uphold his grounds of appeal referable to Love and Thoms. For completeness I also note [103]. These paragraphs read as follows: 103. An express object of the Act is to enable Australia to carry out its obligations toward other extradition countries. The subject matter of the Act includes the forcible removal of persons to face trial on criminal charges in accordance with the law of places other than Australia. In that regard an Australian citizen stands in a different position to that of a non-citizen. It is a fundamental incident of Australian citizenship to enter, remain and reside in Australia. In contrast, a non-citizen has no entitlement to enter, remain and reside here except as may be conferred by statute: see by illustration ss 13, 14, 189 of the Migration Act 1958 (Cth). In considering whether a person "should" be surrendered pursuant to s 22(3)(f) of the Act, the Attorney-General must take into account the effect the determination may have on the interests of the person to be surrendered. A determination against a person who is an Australian citizen will necessarily have the effect of depriving the person of the fundamental incident of citizenship to which I have referred: the right to remain in one's country of nationality. In my opinion, the subject, scope and purpose of the Act evince an intention that the person's status as an Australian citizen be a mandatory relevant consideration in the exercise of the discretion conferred by s 22(2) and, more particularly, s 22(3)(f), because of the very nature of the interest that is interfered with by the determination. 104. Returning now to the Treaty, I accept Mr Lobban's submission that the status of a person as an Australian national is a relevant consideration to be taken into account in the discharge of Australia's obligations under the Treaty itself, particularly in the exercise of the discretion under Article V(1). However, for the reasons I have given above, I consider that s 22(3)(f) of the Act is a provision to the same effect, quite apart from the application of Regulation 4. 105. The implication that the status of a person as an Australian national be taken into account in the exercise of the Attorney-General's discretion under s 22(3)(f) is not a "limitation, condition, qualification or exception" to which the application of the Act is subject "because of section 11" as that phrase appears in s 22(3)(e). It is an implication arising from the proper construction of the Act irrespective of the operation of s 11 and any regulation empowered by it. 106. Even if I am wrong about that, I would accept the Minister's submission that the words in s 22(3)(e)(iv) import no different test to that contained in Article V. It happens that that test is, in turn, no different in substance to the obligations imposed by s 22(3)(f) of the Act, as I have construed it. All of that supports my conclusion that there is no inconsistency between the Act and the Treaty such as to give Regulation 4 any meaningful work to do. 96 Notwithstanding these comments of her Honour, I respectfully note the comments of the plurality which do not make such findings. Rather, as their Honours observed at [10], the fact that the person to be extradited is an Australian citizen is but one of a number of relevant considerations to which the decision-maker is to have regard in exercising his or her discretion whether to make the surrender determination. This finding of the plurality is consistent with other Full Court authority like Rivera and Snedden, that the discretion of the Attorney-General is unfettered in respect of making surrender determinations. 97 In my view there is no apparent merit in Mr Matson's submission that, following Love and Thoms, his Indigenous heritage has the elevated status which he contends. 98 I note that, before the primary Judge, Mr Matson's then Senior Counsel conceded, with respect to Love and Thoms, that the argument concerning the constitutional validity of the Extradition Act as it applied to Mr Matson was without foundation. 99 In summary I consider grounds of appeal 2, 3 and 9 lack merit, relying as they do on Love and Thoms, and noting that Mr Matson is actually an Australian citizen unlike the plaintiffs in those proceedings. The legislation considered by the High Court in Love and Thoms was made pursuant to a different head of Constitutional power than that underpinning the Extradition Act. To the extent that Mr Matson's submissions referable to Lobban run counter to established Full Court authority concerning the unfettered discretion of the Attorney-General under s 22(3)(f) of the Extradition Act, I consider they lack merit. In light of authorities like Rivera and Snedden, I do not accept that the Court should, or could, take a "small step" from observations of Charlesworth J in Lobban to give credence to his claims. No permissible submissions have been made to satisfy me that there are unresolved issues of law in this context referable to Love and Thoms, or that the authorities of Rivera or Snedden should be distinguished. Summary 100 While Mr Matson has explained the reason for his failure to comply with the self-executing orders, and I note that he would suffer prejudice should his appeal not be reinstated, his grounds of appeal have no prospect of success. It is appropriate to dismiss his application for reinstatement of the appeal from the decision of the primary Judge. FURTHER SUPPLEMENTARY SUBMISSIONS 101 On 6 April 2022, Mr Matson wrote to the Registry seeking leave to file further supplementary submissions and an additional affidavit dated 5 April 2022 (relevant documents), which annexed a Draft Further Supplementary Notice of Appeal dated 5 April 2022 (DFSNOA). These documents total 28 pages. 102 Mr Matson contends that he should be granted leave to file the relevant documents as follows: 1. I refer to the above mentioned matter, and my interlocutory application dated 13 February 2022 and filed 2 March 2022 (Reinstate Appeal Application), which is presently reserved for judgment before the Honourable Justice Collier (her Honour). 2. On 25 March 2022 the Court accepted for filing my Supplementary Submissions dated 24 March 2022. 3. Since that time it has come to my attention that there are an additional seven paragraphs in the judgment of Rangiah J (See: Matson v Attorney-General [2020] FCA 1558 at [20], [191]-[192], [206], [239], [260] and [264]) which paragraphs I consider are necessary and appropriate to bring to her Honour's attention. 4. Please find enclosed my Further Supplementary Submissions dated 5 April 2022, which addresses the above mentioned paragraphs and their relevance to my Reinstate Appeal Application. 5. The identified paragraphs have necessitated the preparation of a Draft Further Amended Supplementary Notice of Appeal dated 5 April 2022 (adding five additional grounds of appeal) which is attached to my Affidavit dated 5 April 2022, enclosed with this correspondence. 103 I have had regard to the relevant documents Mr Matson sent to the Registry on 6 April 2022. 104 I will treat Mr Matson's letter of 6 April 2022 annexing the relevant documents as an application for leave to file that material. 105 I refuse leave for the following reasons. 106 First, that Mr Matson has identified an additional seven paragraphs in the decision of the primary Judge, after judgment has been reserved in this matter, which paragraphs he considers necessary to bring to my attention, does not in my view warrant a reopening of the proceeding. There is no fresh evidence, inadvertent error, misapprehension of facts or mistaken apprehension of law which justifies reopening a judgment which has been fully argued and reserved. 107 Second, whether leave to reopen a proceeding is in the interests of justice is a highly subjective determination, and one which derives its rationality from the peculiar circumstances unique to each separate case (see for example Bradshaw at [26]). I do not consider it would be in the interests of justice to grant leave to reopen this proceeding by permitting Mr Matson to file and rely on an entirely new draft notice of appeal. 108 Third, I note that the further submissions he seeks to file are comparatively lengthy, and cannot accurately be described as "supplementary" submissions, or even "reply" submissions which the Court should accept. 109 In this case Mr Matson claims that he overlooked paragraphs in the primary Judge's decision. I note that the primary Judge's decision was published in October 2020. Notwithstanding that Mr Matson is a litigant in person, he has had ample time and opportunity to familiarise himself with the primary decision. As Mason CJ observed in Autodesk Inc v Dyason (No. 2)[1993] HCA 6; (1993) 176 CLR 300 at 302: … However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases. (emphasis added) 110 Plainly, in seeking to file a new DFSNOA and further submissions, Mr Matson is seeking to re-argue his case notwithstanding the oral hearing and the leave already granted to him immediately after the hearing to file short supplementary submissions. 111 Fourth, s 37M(1)(b) of the Federal Court Act in no way supports the proposition that leave be granted to reopen this proceeding. This proceeding has been on foot since November 2020, has involved five interlocutory applications accepted for filing, seven case management hearings, and both Counsel and legal practitioners acting for Mr Matson at various points in time. The complex and drawn-out procedural history that has characterised this proceeding could in no way be considered as typifying quick, inexpensive and efficient resolution of disputes. I do not consider it to be prudent or necessary to prolong the conclusion of this matter any further. 112 Fifth, no explanation has been provided by Mr Matson as to why, after the hearing of the interlocutory application, he has considered it appropriate to file a further notice of appeal (other than apparently overlooking seven paragraphs of the primary Judge's otherwise lengthy and detailed decision). Inferences I consider can be drawn are that: Following the hearing, Mr Matson now seeks to reargue his case, and Mr Matson seeks to delay the determination of his reinstatement application by reference to further process and submissions. 113 Neither proposition can properly be described as supportive of the interests of justice. 114 Finally, the interests of justice require me to also consider the interests of the respondent. While I considered it reasonable to allow very brief supplementary submissions to be filed immediately after the reservation of judgment, I consider that allowing Mr Matson to file the relevant documents would prejudice the respondent by prolonging the proceedings and causing the respondent to incur more costs unnecessarily. 115 In my view, Mr Matson has had a fair hearing of his reinstatement application. It is appropriate that the application proceed to determination. 116 Mr Matson's application of 6 April 2022 to file further supplementary submissions and an additional affidavit dated 5 April 2022 (annexing a Draft Further Supplementary Notice of Appeal dated 5 April 2022) is refused. CONCLUSION 117 For the reasons I have outlined, the application for reinstatement of his appeal is dismissed. 118 Costs should follow the event. I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. Associate: Dated: 29 April 2022