Tervonen v Minister for Justice and Customs [2007] FCA 464

FEDERAL COURT OF AUSTRALIA

Tervonen v Minister for Justice and Customs [2007] FCA 464 JAN TERVONEN v MINISTER FOR JUSTICE AND CUSTOMS AND ORS NSD 168 OF 2007

RARES J

12 MARCH 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 168 OF 2007

BETWEEN: JAN TERVONEN

Applicant

AND: MINISTER FOR JUSTICE AND CUSTOMS

First Respondent

HIS HONOUR MAGISTRATE AT CENTRAL LOCAL COURT

Second Respondent

FINLAND

Third Respondent

JUDGE: RARES J DATE OF ORDER: 12 MARCH 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for interlocutory relief is refused. 2. The applicant pay the costs of the first and third respondents of today. 3. Unless the applicant files a notice of motion on or before 27 March 2007 returnable for 28 March 2007 seeking to continue the proceedings as against the State of Finland on 28 March 2007, the State of Finland will cease to be a party to the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 168 OF 2007

BETWEEN: JAN TERVONEN

Applicant

AND: MINISTER FOR JUSTICE AND CUSTOMS

First Respondent

HIS HONOUR MAGISTRATE AT CENTRAL LOCAL COURT

Second Respondent

FINLAND

Third Respondent

JUDGE: RARES J

DATE: 12 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 Mr Tervonen has been served with a notice under s 16(1) of the Extradition Act 1988 (Cth) given by the Minister for Justice and Customs on 18 August 2006 in respect of 56 groups of offences alleged to have been extradition offences against the law of the State of Finland. 2 He brought an application in this Court seeking judicial review of the s 16 notice. Following a directions hearing Mr Tervonen has amended the application. Today is the return of his amended application for an interim injunction restraining the Minister and Finland from proceeding on 14 March 2007 with proceedings under s 19 of the Act before a magistrate of the Local Court of New South Wales. So far as the evidence shows, no magistrate has yet been assigned to hear the request. 3 The s 16 notice was accompanied by, among other things, eight warrants issued by the District Court at Helsinki in Finland seeking the arrest of Mr Tervonen. Three of the warrants, he accepts, sought his arrest in respect of matters which amounted to a charge within the common law meaning of that expression so that he would be considered to be a person who was accused of having committed the offences the subject of those warrants within the meaning of s 6(a)(i) of the Act. 4 However, he says that the Minister was incapable of forming the opinion required by s 16(2) of the Act in respect of the other five warrants. Relevantly, s 16 provides as follows: '16 Notice by Attorney-General (1) Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received. (2) The Attorney-General shall not give the notice: (a) unless the Attorney-General is of the opinion: (i) that the person is an extraditable person in relation to the extradition country; and (ii) that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or (b) if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought. (3) As soon as practicable after the person is remanded under section 15 or the notice is issued, whichever is the later: (a) a copy of the notice; and (b) copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b); shall be given to the person.' 5 Mr Tervonen's argument is that the Attorney-General or, relevantly here, the Minister exercising the functions of the Attorney-General, could not have been of the opinion that he was an extraditable person in relation to Finland because he was not a person who was accused of having committed the offences the subject of the five impugned warrants. 6 The basis of this argument is that the five impugned warrants recite that the claim for Mr Tervonen's arrest was appended to 'this decision', being the two or more pages which each warrant occupies. Each warrant sets out a number of matters, presumably required by the law of Finland to form part of the document which is a warrant for the arrest of a person. At one point, each of the impugned warrants states under the heading 'Grounds' that 'the grounds are detailed in the claim for arrest'. 7 However, there is nothing in the evidence before me which is appended to any of the warrants or otherwise corresponds to such a claim for arrest. The Minister has put on evidence of the material that was before him when he made the decision. None of that material includes what is described as the claim for arrest appended to the decision for each of the five impugned warrants. Nor was I taken to any material in Mr Tervonen's extensive affidavit which is said to amount to a claim for his arrest.