De Bruyn v. Minister of Justice and Customs

The Appellant, De Bruyn, was a citizen of South Africa. The Respondent, the Minister of Justice and Customs (the Minister), ordered the Appellant to be surrendered to South Africa for an extradition offense. The Appellant was to be charged in South Africa with defrauding the First National Bank of South Africa.

The Treaty on Extradition between Australia and the Republic of South Africa provides that the Government may decline an extradition request if:

“[W]hile also taking into account the nature of the offence and the interests of the Requesting State, considers that, in the circumstances of the case, including the age, health or other personal circumstances of the person whose extradition is sought, the extradition of that person would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment.”

The Appellant claimed that there was conclusive proof that the prison system in South Africa was “inhumane and unjust” due to the prevalence of gang rapes, assault and murder, and the high risk of contracting HIV. He presented substantial evidence in support of these claims, including a UNAIDS report that indicated that 70 to 80 percent of suspects held in South African prisons were raped by fellow prisoners before they were charged. The report also claimed that a prison sentence in South Africa was “tantamount to a death sentence by HIV/AIDS.” Another report from the Inspecting Judge of Prisons claimed that 6,000 of the 10,000 prisoners released monthly from prison in South Africa were HIV-positive.

The Minister concluded that there was “no information available” to support the conclusion that the Appellant would be subjected to torture on surrender to South Africa. It further determined that there was no certainty that the Appellant would contract HIV if he was imprisoned in South Africa.

In reviewing the Minister’s decision, the lower court considered whether the Appellant was denied procedural fairness; whether the Minister erred in concluding that the Appellant would not be subjected to torture in South Africa; and whether the Minister erred in not declining to surrender the Appellant on the basis that it would be unjust, oppressive or incompatible with humanitarian considerations to do so. The lower court rejected all three of the Appellant’s claims. This appeal followed.

The Court found that the high risk of contracting HIV in prison in South Africa constituted a humanitarian consideration when weighing against the extradition of the Appellant to South Africa.

The Court first held that torture was limited to “institutionalised conduct by government authorities for the purpose of punishment, intimidation or coercion.” Therefore conduct identified by the Appellant involving violence among prisoners did not constitute torture. The Court further stated that such conduct was not converted to torture even if “corrupt wardens ignore or even encourage it.”

The Court stated that an extradition request may be denied “where it would be incompatible with humanitarian considerations to surrender the person.” It added that the “circumstances of the case,” including the personal circumstances of the person subject to extradition, were to be taken into account in this determination.

The Court rejected the Minister’s conclusion that, unless it was certain that the Appellant would contract HIV in prison, it would not be oppressive or contrary to humanitarian considerations to extradite him. The Court held that this approach denied “the prospect that exposure to a level of risk of infection should be considered as incompatible with humanitarian considerations.” The Court stated that “exposure to the risk of HIV/AIDS may amount to a threat to the life and well-being” a person. It further declared that if such a threat arose from prison conditions, it may be viewed as associated with the punishment the person would receive if extradited. The Court clarified that it was not suggesting that any exposure to the risk of contracting HIV would constitute a humanitarian consideration weighing against extradition. However, it held that “there may well be a point where the level of risk or threat arising from conditions in the prison of the requesting country is so high as to” weigh against extradition. The Court thus held that Minister’s decision involved “an incorrect understanding of what may amount to humanitarian considerations.”

The Court allowed the appeal, set aside the orders of the lower court, and quashed the Minister’s surrender warrant.

[8] Clause 5(4)(b) of the earlier Regulations provides that the Attorney-General may decline to issue a surrender warrant in relation to a person, if the Attorney-General, while taking into account the nature of the offence to which the extradition request relates, and the interests of the requesting country, is nevertheless of the opinion that in the circumstances of the case, it would be unjust, oppressive or incompatible with humanitarian considerations to surrender the person to that country.

[63] Provisions such as reg 5(4) of the Regulations have been regarded as referring broadly to circumstances where it would be incompatible with humanitarian considerations to surrender the person: ...

[64] That the ‘circumstances of the case’ include the personal circumstances of the person the subject of the extradition request is clarified by Art 3 para (2)(g) of the Treaty. But the phrase has a wider operation. The identification of three types of claims is not to be taken as exhaustive. There is nothing in reg 5(4) nor in the Act which would suggest any limitation on factors which might arise following upon the surrender of the person which may affect them in such a way as to be incompatible with humanitarian considerations, nor that certainty is required in coming to a conclusion that there is present in a particular case humanitarian considerations which ought to weigh against surrender. In any event, exposure to the risk of HIV/AIDS may amount to a threat to the life and well-being of the person, in which case it is not dissimilar to the third type of claim [ that the requesting country will be unable or does not intend to protect the requested person from assassination attempts]. And such a threat, arising from prison conditions, may be viewed as associated with the punishment the person would receive if surrendered.

[66] I am not suggesting that any exposure to risk of rape and HIV/AIDS infection would suffice as a humanitarian consideration which would weigh against surrender. As his Honour the primary judge correctly pointed out, prison conditions in countries such as Australia include some such risks. But there may well be a point where the level of risk or threat arising from conditions in the prison of the requesting country is so high as to come within the circumstances of which the regulation speaks. That assessment is one for the Minister.