Extradition between Australia and Mexico

Cabal v United Mexican States [2001] FCA 427; (2001) 108 FCR 311


What were the facts of this case?

The appellants, Mr Cabal and Mr Pasini, were charged with involvement in unauthorised transfers from the bank of their employer, fraud, money laundering and tax fraud in excess of $50 million. As citizens of Mexico, the first respondents (the United Mexican States) had made various extradition requests to bring them within their jurisdiction for prosecution. The second respondent (the magistrate) had originally determined the appellants eligible for extradition. This decision was further upheld by the Federal Court judgment of French J in Cabal v United Mexican States (No 3) [2000] FCA 1204.

The appellants, Mr Cabal and Mr Pasini, thus sought to further review the determination of eligibility for their surrender by the original magistrate.


What were the issues raised in the court?


Constitutional validity of the Extradition Act challenged?

The appellants made submissions challenging the constitutional validity of the Extradition Act 1988 (Cth) (‘the Act’) in conferring a solely administrative function upon the court. The magistrate’s original decision to order a surrender was argued to be the sole exercise of an administrative power, contrary to the separation of powers.

However, whilst the magistrate was conducting administrative proceedings, the court found that the magistrate’s decisions were judicial in nature, being of a final and binding nature and subject to the right of further judicial review. The magistrate was also required to apply the facts to the statute, another characteristic of judicial power. Whilst the judges acknowledged that extradition was traditionally a matter for the executive, it did not lead to the inference that the magistrate’s review was solely of an administrative nature.

Ultimately, it was ruled that the magistrate was acting persona designata in conducting administrative proceedings, carrying out a non-judicial function.


Had an extradition objection been made out? The Mexican legal system considered

The appellants also argued that French J had erred in determining that an extradition objection had not been made out under section 7(b) of the Act. The appellants had previously claimed the purpose for their extradition was due to their political opposition to Mexican governmental policies, presenting expert evidence to the potential for the Mexican criminal justice system to be manipulated.

French J had not given the evidence extensive weight, concluding that the deficiencies in the Mexican criminal justice system were not enough to make out an extradition objection. Furthermore, the appellant’s suggested motive for extradition had not been substantially supported by the evidence to offer a necessary ‘weighty case’.

Firstly, the appellants submitted that the magistrate had erred in law in finding the court ill-equipped to evaluate a large bulk of the evidence presented. A large amount of ‘country information’ was provided through expert witnesses of the nature of the Mexican political system and its history.

Therefore, it was argued that large aspects of the ‘Mexican context’ had not been considered in determining judgment. However, the court rejected this argument, finding that French J had carefully considered the evidence of the experts and formed a view of its relevance and utility. Whilst some reservation was expressed over some aspects of the evidence, French J had been rightfully hesitant in passing judgment regarding the effectiveness of foreign justice systems. Furthermore, even had French J acknowledged the deficiencies of the Mexican justice system, they would not be sufficient to make out an extradition objection.


Had the court presumed the appellants guilty?

The appellants also suggested that French J had erred in approaching the material before the court with a presumption of guilt. It was argued that the objectives of extradition had been given too much weight and had been relied upon to reject extensive portions of evidence. However, the judges found that no finding or assumption of guilt or innocence had been made.

Instead, French J had recognised the seriousness of the allegations before the court. Furthermore, it was open to French J to have regard to the seriousness of the offences alleged to consider whether an extradition objection had been made out. As the offences were of an extremely serious nature, no inference of political motive could be made; although the judges acknowledged the possibility should an extradition request be made for minor offences. The sources of evidence that had not been readily accepted were all of an opinionated nature, open to be rejected by a judge.

Therefore, an observation regarding the ‘weighty case’ needed to successfully prove a political motive for extradition was properly open on the material with no appealable error.

Therefore, the appeal was dismissed.



Nyman Gibson Miralis provides expert advice and representation in complex transnational cases involving extradition and mutual legal assistance.

Contact us if you require assistance.