Tervonen v Finland

REASONS FOR JUDGMENT 1 The proposed extradition of the applicant, Jan Tervonen, has become something of a procedural morass. On 25 September 2007 I reserved my decision on the application for a review pursuant to s 21 of the Extradition Act 1988 (Cth) (the Act) of a decision of the second respondent pursuant to s 19 of the Act that the applicant was eligible for surrender to the first respondent, the Republic of Finland, for certain offences and the consequent issue of a warrant pursuant to s 19(9) of the Act. The grounds of the review challenged the existence of the conditions set out in s 19(1)(a), (b) and (d) and challenged the finding that the requirements of s 19(2)(a), (b) and (c) were satisfied. I was informed that the applicant had independently challenged the existence of a valid notice pursuant to s 16 in proceedings pursuant to s 39B of the Judiciary Act 1903 (Cth) in which the Minister for Justice and Customs was the respondent, in relation to which judgment had been reserved by Rares J. 2 On 6 November 2007 Rares J delivered reasons for judgment and stood the matter over for argument as to the appropriate relief to be granted (Tervonen v Minister for Justice and Customs [2007] FCA 1684). On 8 November 2007 Rares J made declarations and orders, the effect of which was to declare invalid and quash successive notices purporting to have been given pursuant to s 16 (Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898). Rares J declined to grant any further relief to the applicant including an order for release. 3 My attention having been drawn to those orders, the matter was brought back to consider the implications of them. Counsel then appeared for the applicant, who had hitherto been unrepresented, and indicated that an application may be made to amend the proceeding with a view to obtaining an order for release of the applicant. The matter was stood over to enable the applicant to clarify the course proposed. The applicant now seeks to amend the application by adding the Minister for Justice and Customs (or the relevant Minister) as third respondent and seeks a declaration that the applicant is not on remand under s 15 of the Act and is not otherwise lawfully detained. That course is opposed, although counsel for the first respondent Finland is also instructed to appear for the Minister in the event that joinder takes place. I have received submissions from each side as to the merits of the argument proposed if the amendment is made, those arguments also touching upon the proceeding as presently framed. I have been informed that the first respondent has appealed to the Full Court against the orders made by Rares J and that the hearing of that appeal has been expedited. I am also informed that yet another notice pursuant to s 16 has been issued, and that the validity of that notice has been challenged by the applicant in a proceeding before yet another judge of the Court. 4 At the commencement of the substantive hearing, I raised the issue as to whether satisfaction of the requirements of s 19(1) could be considered in a review pursuant to s 21. I expressed a tentative view in the negative and suggested that challenge to those requirements would need to be by way of a separate proceeding based on administrative law grounds. Counsel for Finland submitted that that view was contrary to current practice, based upon the decisions of Full Courts in Knauder v Moore (2002) 127 FCR 327 and Brock v United States of America (2007) 157 FCR 121. As those decisions do provide a basis for what was described as the current practice, I was prepared to proceed accordingly in the absence of argument to the contrary. 5 Once that view is taken it is then necessary to grapple with the conduct of the review. There is little controversy as to the conduct of a review of a decision based upon s 19(2). There is little practical difference between the views of Black CJ (at [20]-[24] and [29]) and Rares J (at [73]-[80]) in Brock 157 FCR 121. As was said in Dutton v O'Shane (2003) 132 FCR 352 (at 386): "the s 21 review is not one of judicial review in the strict sense. It is by way of rehearing in which the court is authorised to reach its own conclusions on eligibility for surrender, albeit it is limited in so doing by having regard only to the material before the magistrate" 6 Does that approach apply to review of the requirements of s 19(1)? That question was not clearly or satisfactorily dealt with in Knauder 127 FCR 327. Conti J (having noticed the point that troubles me at [36]) dealt with the question at [37]-[40]. There is some support in those paragraphs for the view that the question of reasonable time in s 19(1)(d) is an objective fact for determination by the Court pursuant to s 21 but, on a proper reading, it seems to me to be based upon the view that the circumstances in that case were such that there could be no reasonable or rational finding that the applicant had reasonable time in which to prepare for the conduct of the proceedings. Allsop J gave the other leading judgment. His Honour found both that there was an absence of the necessary jurisdictional fact on the basis that the magistrate's view was arbitrary and capricious, and that there was an absence of procedural fairness afforded as a matter of fact and law. His Honour held that the denial of procedural fairness was not cured by the s 21 review as held by the primary Judge but preferred not to decide the question whether failure to satisfy s 19(1)(d) of itself required quashing the orders of the magistrate. Mansfield J confined his reasons for making the orders to the failure of the magistrate to accord procedural fairness to the appellant. How failure to accord procedural fairness comes within the rubric of a s 21 review was not explained (cf Hill J in Republic of South Africa v Dutton (1997) 77 FCR 128 at 136D, noticed by Conti J in Knauder 127 FCR 327 at [36]). 7 The question was discussed by Black CJ in Brock 157 FCR 121, particularly at [28] and [30]. It was said (at [30]) that: "the jurisdictional precondition provided for by s 19(1)(d) should not be treated as a jurisdictional fact, subject to review by way of rehearing; that is, absent an error of law, the magistrate's decision, or her 'consideration' under s 19(1)(d), should be final" for the purposes of a s 21 review. 8 Rares J held that the magistrate in that case had failed to consider a relevant consideration in addressing the question under s 19(1)(d) and for that reason the proceedings lacked any lawful authority (Brock 157 FCR 121 at [115]). Interestingly, Rares J went on to say that: "Even if the Court is unable to determine this question on a review under s 21 of the Act, s 22 of the Federal Court of Australia Act requires that the Court grant either absolutely, or on such terms and conditions as it thinks just, all remedies to which any of the parties appear to be entitled." Jacobson J upheld the magistrate no matter what legal approach was to be taken ([50]-[52]). 9 Uninstructed by authority, I would have thought that, if the review pursuant to s 21 encompasses all aspects of s 19, then there must be the same type of review in relation to all aspects, namely, a rehearing, albeit limited to the materials before the magistrate. Section 21 only provides for one kind of review. On that approach, I would form my own view as to the existence of the preconditions, including s 19(1)(d). 10 In the events which have happened there is no effective dispute between the parties that the requirement of s 19(1)(b) did not exist - so much is decided by the relief granted by Rares J. Although there is strictly no estoppel, because the parties are different, counsel for the respondent concedes that I would follow Rares J and that the result would be that the existence of the two successive s 16 notices that were issued prior to the hearing before the magistrate is swept away (Minister for Immigration v Bhardwaj (2002) 209 CLR 597; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ). It inevitably follows that a necessary precondition to the magistrate's order in question did not exist and the order cannot survive. 11 Section 21(2) provides that, in circumstances such as the present, the Court "may" quash the magistrate's order and direct the magistrate to order the release of the applicant. That was the relief sought in the application. Indeed, the structure of the subsection assumes that that will be the result where the order is not confirmed. In my opinion, the word "may" in the subsection is a Julius v Bishop of Oxford imperative (see the explanation by Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135). Section 21 does not authorise the Court to directly order the release of the person. That course was taken in Knauder 127 FCR 327 apparently based upon the submissions and consent of the country respondent (see Conti J at [41]). That may have been a sensible course in order to avoid double handling in a matter affecting the liberty of the subject, but the decision cannot be seen as authority for such a power absent consent. 12 Reference was made to a passage in the judgment of the Full Court in Williams v Minister for Justice and Customs of the Commonwealth of Australia (2007) 157 FCR 286. That was a proceeding pursuant to s 39B of the Judiciary Act 1903 (Cth) rather than a proceeding pursuant to s 21 of the Act. It is, thus, not directly in point. However, the statement (Williams 157 FCR 286 at [53]): "The absence of a valid notice under s 16(1) is obviously fatal to the proceedings before the magistrate. The discharge of recognisances would also necessarily follow." does no more than recognise the effect of the text of s 19(1) and s 21(2)(b)(i) of the Act and is consistent with what should happen in this case. 13 Even if there were a discretion to withhold relief pursuant to s 21(2) I would not do so. Counsel for the applicant wishes to raise further questions as to the effect of both s 15 and s 17(2) of the Act. Counsel for Finland contends that the extradition can be revived. All of that is irrelevant to a review of the particular decision pursuant to s 21. That section should operate as enacted. The taking of other steps by one side or the other will be governed by other considerations. The applicant has been in custody since July 2006. He should not be kept in custody for the convenience of the authorities whilst they work out what, if anything, can be done to revive the extradition. There should be no deprivation of liberty that is not clearly authorised by statute. 14 There may be a case for endeavouring to end the proliferation and fragmentation of litigation. However, it would be a mistake, in my opinion, to use this proceeding as a vehicle for seeking to solve all issues connected with this extradition. The hearing was completed and judgment reserved on a particular basis between particular parties. In any event, the amendment sought by the applicant would only select one aspect of the matter and only seeks declaratory relief. The amendment is refused. 15 Relief as sought will be granted pursuant to s 21(2)(b)(i). The respondent should pay the costs of the applicant excluding 18 December 2007 as a good deal of the argument on that day was devoted to the amendment and other relief. There will be no order as to the costs of that day. 16 There may be utility in going ahead to consider the other issues raised in the review against the possibility that the appeal against the judgments of Rares J succeeds. However, that should not delay the making and executing of the orders. These reasons explain the basis for those orders. Further reasons will be given in due course as to the other issues. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.