Nri enquiry
manpreet
(Querist) 18 September 2012
This query is : Resolved
On. Nov 2008 I got married to australian guy.on 2010 I joined my husband in austalia on visa bc
My husband left me and my daughdr in india. From 2 months he stopped calling me. I am staying in my parents family. Please guide me about my rites.
om
Guest
(Expert) 18 September 2012
Rights, NOT rites.
However, all depends on where did you marry, India or Australia, and the applicability of law of the country concerned.
Anish Thakur 7018812737
(Expert) 18 September 2012
respected querist ,
you and your daughter have many legal remedies being a indian citizen , no matter the guy is from australia and he is living there , india and australia have extradition treaty ,copy of which is attached here with.
feel free to call on 9459321520 for detailed advise.
1006560A-100514Z.doc
Extradition (India) Regulations
20101
Select Legislative Instrument 2010 No. 196
I, QUENTIN BRYCE, Governor-General of the Commonwealth
of Australia, acting with the advice of the Federal Executive
Council, make the following Regulations under the Extradition
Act 1988.
Dated 8 July 2010
QUENTIN BRYCE
Governor-General
By Her Excellency’s Command
BRENDAN O’CONNOR
Minister for Home Affairs
Federal Register of Legislative Instruments F2010L01912
Regulation 1
2 Extradition (India) Regulations 2010 2010, 196
1 Name of Regulations
These Regulations are the Extradition (India) Regulations
2010.
2 Commencement
These Regulations commence on the day on which the
Extradition Treaty between Australia and the Republic of
India, done at Canberra in Australia on 23 June 2008, enters
into force.
3 Definition
In these Regulations:
Act means the Extradition Act 1988.
India means the Republic of India.
4 Declaration of India as an extradition country
For the definition of extradition country in section 5 of the
Act, India is declared to be an extradition country.
5 Application of Act
For paragraph 11 (1) (a) of the Act, the Act applies to India
subject to the Extradition Treaty between Australia and the
Republic of India, done at Canberra in Australia on 23 June
2008, a copy which is set out in Schedule 1.
Federal Register of Legislative Instruments F2010L01912
Extradition Treaty between Australia and the Republic of India,
done at Canberra in Australia on 23 June 2008
Schedule 1
2010, 196 Extradition (India) Regulations 2010 3
Schedule 1 Extradition Treaty between
Australia and the Republic of
India, done at Canberra in
Australia on 23 June 2008
(regulation 5)
EXTRADITION TREATY BETWEEN AUSTRALIA AND THE
REPUBLIC OF INDIA
Australia and the Republic of India (hereinafter referred to as the
‘Contracting States’)
DESIRING to make more effective the co-operation of the two countries in
the suppression of crime, including offences related to terrorism, by
concluding a treaty on extradition
HAVE AGREED as follows:
ARTICLE 1
OBLIGATION TO EXTRADITE
Each Contracting State agrees to extradite to the other, in accordance with
the provisions of this Treaty, any persons who are wanted for trial, or the
imposition or enforcement of a sentence, in the Requesting State for an
extraditable offence.
ARTICLE 2
EXTRADITABLE OFFENCES
1. For the purposes of this Treaty, extraditable offences are offences,
however described, which are punishable under the laws of both Contracting
States by imprisonment for a maximum period of at least one year or by a
more severe penalty. Where the request for extradition relates to a person
convicted of such an offence who is wanted for the enforcement of a
sentence of imprisonment, extradition shall be granted only if a period of at
least six months of such penalty remains to be served.
2. For the purpose of this Article, in determining whether an offence is
an offence against the law of both Contracting States:
Federal Register of Legislative Instruments F2010L01912
Schedule 1 Extradition Treaty between Australia and the Republic of India,
done at Canberra in Australia on 23 June 2008
4 Extradition (India) Regulations 2010 2010, 196
a. it shall not matter whether the laws of the Contracting States
place the acts or omissions constituting the offence within the
same category of offence or denominate the offence by the same
terminology; and
b. the totality of the acts or omissions alleged against the person
whose extradition is sought shall be taken into account and it
shall not matter whether, under the laws of the Contracting
States, the constituent elements of the offence differ.
3. An offence may be an extraditable offence notwithstanding that it
relates to taxation, customs duties, foreign exchange control or other
revenue matters, or is one of a purely fiscal character. Extradition may not
be refused on the ground that the law of the Requested State does not
impose the same kind of tax or duty or does not contain a tax, duty, customs,
or exchange regulation of the same kind as the law of the Requesting State.
4. Where the offence has been committed outside the territory of the
Requesting State, extradition shall be granted if the law of the Requested
State provides for the punishment of an offence committed outside its
territory in similar circumstances. Where the law of the Requested State
does not so provide the Requested State may, in its discretion, grant
extradition.
5. Extradition shall be granted pursuant to the provisions of this Treaty
irrespective of whether the offence for which extradition is sought was
committed before or after entry into force of this Treaty, provided in all
cases that:
a. it was an offence in the Requesting State at the time of the acts
or omissions constituting the offence are alleged to have
occurred; and
b. the acts or omissions alleged would, if they had taken place in
the territory of the Requested State at the time of the making of
the request for extradition, have constituted an offence against
the law in force in that State.
ARTICLE 3
COMPOSITE OFFENCES
Extradition shall also be available in accordance with this Treaty for an
extraditable offence, notwithstanding that the conduct of the person sought
occurred wholly or in part in the Requested State, if under the law of that
Federal Register of Legislative Instruments F2010L01912
Extradition Treaty between Australia and the Republic of India,
done at Canberra in Australia on 23 June 2008
Schedule 1
2010, 196 Extradition (India) Regulations 2010 5
State this conduct and its effects, or its intended effects, taken as a whole,
would be regarded as constituting the commission of an extraditable offence
in the territory of the Requesting State.
ARTICLE 4
GROUNDS OF REFUSAL
1. Extradition shall not be granted if:
a. the offence of which a person is accused or convicted is a
military offence which is not also an offence under the general
criminal law;
b. if the person whose extradition is sought has, according to the
law of the Requesting State, become immune from prosecution
or punishment by reason of lapse of time;
c. if the offence with which the person sought is accused or
convicted, or any other offence for which that person may be
detained or tried in accordance with this Treaty, carries the death
penalty under the law of the Requesting State, unless the
extradition request includes an undertaking that the death penalty
will not be imposed or, if imposed, will not be carried out.
2. Extradition may be refused if the offence of which it is requested is
an offence of a political character. For the purposes of this Treaty the
following offences shall not be regarded as offences of a political character:
a. an offence in respect of which the Contracting States have an
obligation to extradite or submit the case to their competent
authorities for prosecution, under a multilateral/international
treaty or convention to which both Contracting States are parties;
b. an offence in respect of the taking or attempted taking of the life
of a Head of State, Head of Government, or a member of that
person’s family;
c. murder, culpable homicide or manslaughter;
d. an offence, involving firearms, explosives, incendiaries,
destructive devices or substances, causing death, grievous bodily
harm or serious damage to property;
e. any other offence related to terrorism which at the time of the
request is, under the law of the Requested State, not to be
regarded as an offence of a political character; or
Federal Register of Legislative Instruments F2010L01912
Schedule 1 Extradition Treaty between Australia and the Republic of India,
done at Canberra in Australia on 23 June 2008
6 Extradition (India) Regulations 2010 2010, 196
f. conspiracy or attempt to commit, or participation in, or abetment
of, any of the foregoing offences.
3. Extradition may be refused in any of the following circumstances:
a. if the person has been tried and finally dealt with in respect of
the offence for which extradition is sought;
b. if the Requested State has substantial grounds to believe that the
request for extradition has been made for the purpose of
prosecuting or punishing a person on account of that person’s
race, sex, religion, nationality or political opinion or that that
person’s position may be prejudiced for any of those reasons;
c. if the person whose extradition is requested has been sentenced
or would be liable to be tried or sentenced in the Requesting
State by an extraordinary or ad hoc court or tribunal;
d. if the Requested State believes that the surrender is likely to
have exceptionally serious consequences for the person whose
extradition is sought, including because of the person’s age or
state of health.
ARTICLE 5
EXTRADITION OF NATIONALS
The nationals of one Contracting State may be extradited to the other
Contracting State. If extradition is not granted, the Requested State shall, on
the request of the Requesting State, submit the case to its competent
authorities for prosecution in accordance with the provisions of this Treaty
and the laws of the Requested State.
ARTICLE 6
EXTRADITION AND PROSECUTION
1. The request for extradition may be refused by the Requested State if
the person whose extradition is sought may be tried for the extradition
offence in the courts of that State.
2. Where the Requested State refuses a request for extradition for the
reason set out in paragraph 1 of this Article, it shall submit the case to its
competent authorities so that prosecution may be considered. Those
authorities shall take their decision in the same manner as in the case of any
offence of a serious nature under the law of that State.
Federal Register of Legislative Instruments F2010L01912
Extradition Treaty between Australia and the Republic of India,
done at Canberra in Australia on 23 June 2008
Schedule 1
2010, 196 Extradition (India) Regulations 2010 7
3. If the competent authorities decide not to prosecute the request for
extradition shall be reconsidered in accordance with this Treaty.
ARTICLE 7
EXTRADITION PROCEDURES
1. The request for extradition under this Treaty shall be made in
writing and communicated through diplomatic channels.
2. All documents submitted in support of a request for extradition shall
be authenticated in accordance with paragraph 2 of Article 9. Three copies
of the request and supporting documents shall also be provided. However,
the copies need not be authenticated.
3. The request shall be accompanied by:
a. the details necessary to establish the identity and nationality of
the person sought including, where possible, photographs and
fingerprints;
b. a statement of the current location of the person, if known;
c. a statement of each offence for which extradition is sought;
d. a statement of the acts and omissions which are alleged against
the person in respect of each offence for which extradition is
sought;
e. the text of the laws creating each offence and describing the
penalty which may be imposed; and
f. a statement as to whether there is any limitation in respect of
proceedings or punishment.
4. If the request relates to an accused person, it must also be
accompanied by a warrant of arrest, or a copy thereof, issued by a Judge,
Magistrate, or other competent authority in the territory of the Requesting
State and such documents or other information required by the Requested
State as would reasonably establish that the person sought has committed the
offence for which extradition is requested and to establish that the person
requested is the person to whom the warrant refers.
5. If the request relates to a person already convicted and sentenced, it
shall also be accompanied by:
a. a certificate of conviction and sentence; and
Federal Register of Legislative Instruments F2010L01912
Schedule 1 Extradition Treaty between Australia and the Republic of India,
done at Canberra in Australia on 23 June 2008
8 Extradition (India) Regulations 2010 2010, 196
b. a statement that the sentence is enforceable and how much of the
sentence remains to be served.
6. If the Requested State considers that the documents or other
information supplied for the purposes of this Treaty are not sufficient in
order to enable a decision to be taken as to the request, additional documents
or other information shall be submitted within such time as the Requested
State may require.
7. If in any particular case the Requested State so requires, the
Requesting State shall supply a translation of any document submitted in
accordance with the provisions of this Treaty.
ARTICLE 8
CONSENT TO SURRENDER
If the person sought consents to surrender to the Requesting State, the
Requested State may, subject to its laws, surrender the person as
expeditiously as possible without further proceedings.
ARTICLE 9
EVIDENCE/AUTHENTICATION
1. A document that, in accordance with Article 7, accompanies a
request for extradition shall be admitted in evidence, if authenticated, in any
extradition proceedings in the territory of the Requested State.
2. A document is authenticated for the purposes of this Treaty if:
a. it purports to be signed or certified by a Judge, Magistrate or an
official in or of the Requesting State; and
b. it purports to be authenticated by the official seal of a Minister of
Government, or of a Department or official of the Requesting
State; or
c. it has been authenticated in such other manner as may be
permitted by the law of the Requested State.
3. Documents described in paragraph 1 of this Article shall be admitted
in evidence whether they originated in the Requesting State or in a third
State.
Federal Register of Legislative Instruments F2010L01912
Extradition Treaty between Australia and the Republic of India,
done at Canberra in Australia on 23 June 2008
Schedule 1
2010, 196 Extradition (India) Regulations 2010 9
ARTICLE 10
PROVISIONAL ARREST
1. In case of urgency, a Contracting State may request the provisional
arrest of the person sought, pending presentation of the request for
extradition. A request for provisional arrest may be transmitted through
diplomatic channels. The facilities of the International Criminal Police
Organisation (Interpol) may be used to transmit such a request.
2. The application for provisional arrest shall contain:
a. a description of the person sought;
b. the location of the person sought, if known;
c. a brief statement of the facts of the case, including, if possible,
the time and location of the offence;
d. a description of the laws violated;
e. a statement of the existence of a warrant of arrest, or a finding of
guilt or judgment of conviction against the person sought; and
f. a statement that a request for extradition for the person sought
will follow.
3. The Requesting State shall be notified without delay of the action
taken on its application and the reasons for any denial.
4. A person who is provisionally arrested may be released from
custody on the expiration of sixty (60) days from the date of provisional
arrest pursuant to this Treaty if the executive authority of the Requested
State has not received the formal request for extradition and the supporting
documents required in Article 7.
5. The fact that the person sought has been released from custody
pursuant to paragraph 4 of this Article shall not prejudice the subsequent
re-arrest and extradition of that person, if the extradition request and
supporting documents are delivered at a later date.
Federal Register of Legislative Instruments F2010L01912
Schedule 1 Extradition Treaty between Australia and the Republic of India,
done at Canberra in Australia on 23 June 2008
10 Extradition (India) Regulations 2010 2010, 196
ARTICLE 11
CONCURRENT REQUESTS
1. Where requests are received from two or more States for the
extradition of the same person, the Requested State shall determine to which
of those States the person is to be extradited and shall notify the Requesting
States of its decision.
2. In determining to which State a person is to be extradited, the
Requested State shall have regard to all relevant circumstances and, in
particular, to:
a. if the requests relate to different offences - the relative
seriousness of the offences;
b. the existence of an extradition treaty with the other State or
States;
c. the time and place of commission of each offence;
d. the respective dates of the requests;
e. the nationality of the person; and
f. the ordinary place of residence of the person.
ARTICLE 12
SURRENDER
1. The Requested State shall, as soon as a decision on the request for
extradition has been made, communicate that decision to the Requesting
State.
2. Where extradition is granted, the Requested State shall surrender the
person at a time, and from a point of departure in its territory as may be
decided in consultation with the Requesting State.
3. The Requesting State shall remove the person from the territory of
the Requested State within such reasonable period as the Requested State
may specify and, if the person is not removed within that period, the
Requested State may refuse to extradite that person for the same offence.
4. If circumstances beyond its control prevent a Contracting State from
surrendering or removing the person to be extradited it shall notify the other
Contracting State. The two Contracting States shall agree upon a new date of
surrender, and the provisions of paragraph 3 of this Article shall apply.
Federal Register of Legislative Instruments F2010L01912
Extradition Treaty between Australia and the Republic of India,
done at Canberra in Australia on 23 June 2008
Schedule 1
2010, 196 Extradition (India) Regulations 2010 11
ARTICLE 13
SURRENDER OF PROPERTY
1. To the extent permitted under the law of the Requested State all
property found in the Requested State that has been acquired as a result of
the offence or may be required as evidence shall be surrendered if
extradition is granted and the Requesting State so requests.
2. Subject to paragraph 1 of this Article, the abovementioned property
shall, if the Requesting State so requests, be surrendered to the Requesting
State even if the extradition cannot be carried out.
3. Where the law of the Requested State or the rights of third parties so
require, any articles so surrendered shall be returned to the Requested State
free of charge if that State so requests.
ARTICLE 14
POSTPONEMENT OF EXTRADITION AND TEMPORARY
SURRENDER
1. The Requested State may postpone the surrender of a person in order
to proceed against that person, or so that the person may serve a sentence,
for an offence other than the offence for which extradition is sought. In such
a case the Requested State shall advise the Requesting State accordingly.
2. When the person is serving a sentence in the territory of the
Requested State for an offence other than the offence for which extradition
is sought, the Requested State may temporarily surrender the person to the
Requesting State to be prosecuted for an offence for which extradition is
sought. The person so surrendered shall be kept in custody in the Requesting
State and shall be returned to the Requested State after proceedings against
the person have concluded, in accordance with written conditions to be
mutually determined by the Contracting States.
Federal Register of Legislative Instruments F2010L01912
Schedule 1 Extradition Treaty between Australia and the Republic of India,
done at Canberra in Australia on 23 June 2008
12 Extradition (India) Regulations 2010 2010, 196
ARTICLE 15
RULE OF SPECIALITY
1. Any person who is returned to the territory of the Requesting State
under this Treaty shall not be detained or tried or subjected to any other
restriction of her or his personal liberty, within the territory of the
Requesting State for or in respect of any offence committed before he was
returned to that territory other than:
a. the offence in respect of which the person was returned;
b. any other extraditable offence disclosed by the facts upon which
the request for extradition was based, provided that the offence
does not carry a penalty which is more severe than that which
could be imposed for the offence in respect of which the person
was returned; or
c. any other extraditable offence in respect of which the Requested
State may consent to the person being dealt with.
2. A person extradited under this Treaty may not be extradited to a
third State for an offence committed prior to his extradition unless the
Requested State consents.
3. Paragraphs 1 and 2 of the present Article shall not apply if the
person has had an opportunity to leave the Requesting State and has not
done so within 45 days of final discharge in respect of the offence for which
that person was extradited or if the person has voluntarily returned to the
territory of the Requesting State after leaving it.
4. A request for the consent of the Requested State under the present
Article shall be accompanied by such of the documents as mentioned in
Article 7 of the present Treaty as may be sought by the Requested State.
ARTICLE 16
TRANSIT
1. Where a person is to be extradited to a Contracting State from a third
State through the territory of the other State, the State to which the person is
to be extradited shall request the other State to permit the transit of that
person through its territory. This does not apply where air transport is used
and no landing in the territory of the other State is scheduled. A person in
transit may be held in custody during the period of transit.
Federal Register of Legislative Instruments F2010L01912
Extradition Treaty between Australia and the Republic of India,
done at Canberra in Australia on 23 June 2008
Schedule 1
2010, 196 Extradition (India) Regulations 2010 13
2. Upon receipt of such a request, which shall contain relevant
information, the Requested State shall deal with this request expeditiously
pursuant to procedures provided by its own law.
3. In the event of an unscheduled landing, the State to be requested to
permit transit may, at the request of the escorting officer, hold the person in
custody, subject to its law, pending receipt of the transit request to be made
in accordance with paragraph 1 of the present Article.
ARTICLE 17
EXPENSES
1. The Requested State shall make all necessary arrangements for and
meet the cost of any proceedings arising out of a request for extradition and
shall otherwise represent the interests of the Requesting State.
2. The Requested State shall bear the expenses incurred in its territory
in relation to the arrest and detention of the person whose extradition is
sought until that person is surrendered to the Requesting State.
3. The Requesting State shall bear the expenses incurred in conveying
the person from the territory of the Requested State.
ARTICLE 18
CONSULTATION
1. The Contracting States shall, at the request of either, consult
concerning the interpretation and application of this Treaty.
2. The competent authorities of the Contracting States may consult
each other directly in connection with the processing of individual cases and
in furtherance of maintaining and improving procedures for the
implementation of this Treaty.
ARTICLE 19
OBLIGATIONS UNDER INTERNATIONAL
CONVENTIONS/TREATIES
The present Treaty shall not affect the rights and obligations of the
Contracting States arising from International Conventions/Treaties to which
they are parties.
Federal Register of Legislative Instruments F2010L01912
Schedule 1 Extradition Treaty between Australia and the Republic of India,
done at Canberra in Australia on 23 June 2008
14 Extradition (India) Regulations 2010 2010, 196
ARTICLE 20
ENTRY INTO FORCE
1. The Contracting States shall inform each other in writing of the
completion of their internal procedures required for entry into force of this
Treaty. The Treaty shall enter into force thirty days after the date of the
later communication.
2. Either of the Contracting States may terminate this Treaty at any
time by giving notice to the other through diplomatic channels, and if such
notice is given the Treaty shall cease to have effect six months after the
receipt of the notice.
In witness whereof, the undersigned being duly authorised thereto by
their respective Governments, have signed this Treaty.
Done in duplicate at Canberra this the twenty third day of June, two
thousand and eight, in English and Hindi both languages being equally
authentic. In case of any divergence of interpretation, the English text
shall prevail.
On behalf of the Government of
Australia
………………………………………
On behalf of the Government of the
Republic of India
…………………………………………
Hon Stephen Smith
Minister for Foreign Affairs
Hon Pranab Mukherjee
Minister for External affairs
Note
1. All legislative instruments and compilations are registered on the Federal
Register of Legislative Instruments kept under the Legislative
Instruments Act 2003. See http://www.frli.gov.au.
Federal Register of Legislative Instruments F2010L01912
R.K Nanda
(Expert) 18 September 2012
state full facts step wise.
