Tervonen v Finland

REASONS FOR JUDGMENT BUCHANAN J: 2 This appeal proceeded pursuant to leave to appeal which I granted on 16 October 2008 (Tervonen v Finland [2008] FCA 1539) ('the leave judgment'). In the leave judgment I concluded, applying the conventional test in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, that Mr Tervonen was entitled to consideration by a Full Court of his arguments that Flick J had erred in dismissing his application under s 39B of the Judiciary Act 1903 (Cth), which sought to attack a request made by Finland on 27 July 2006 for his extradition. 3 It is not necessary to recount again the complicated procedural history which has arisen from the request made by Finland for Mr Tervonen's extradition and the many individual pieces of litigation which the request has generated. Nor is it necessary to deal in great detail with the bases upon which Flick J dismissed Mr Tervonen's application although I shall later discuss them briefly. 4 In the proceedings before Flick J, where Mr Tervonen represented himself, Mr Tervonen wished to argue that he was not an "extraditable person" within the meaning of s 6(a)(i) of the Extradition Act 1988 (Cth) ('the Act'). The proceedings, however, were not focused upon any obligation resting upon an officer of the Commonwealth. They sought to restrain Finland from pressing its request for his extradition and the Minister from acting upon that request. Expressed so broadly, the proceedings had no prospect of success. They did not raise any justiciable issue capable of engaging the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth). 5 Although Flick J was prepared to accept that arguments of the kind Mr Tervonen wished to rely upon would be available in proceedings concerned with s 16 of the Act, no amendment of the application was, in fact, ever made to that effect. Nor was it suggested on the appeal that the proceedings should go forward on that basis if the appeal was upheld. Rather, at the hearing of the appeal, reliance was placed upon a Further Amended Application in the following form: 'An Application under s39B and s39B(1A) of the Judiciary Act 1903 (Cth) for writs of mandamus and prohibition and a declaration in relation to a request made by Finland on 27 July 2006 to extradite the Appellant to Finland. A. DETAILS OF CLAIM The Applicant claims 1. A declaration that the Appellant is not an extraditable person under s6 of the Extradition Act 1988 in relation to warrants 4-8. 2. A writ of prohibition restraining the Third Respondent from determining under s22(2) of that Act that the Appellant should be surrendered to Finland in relation to offences alleged in those warrants. 3. Alternatively, a writ of mandamus compelling the Third Respondent to have regard to the declaration made by this Court when determining, pursuant to s22 of that Act whether the Appellant should be surrendered to Finland in relation to those warrants. B. GROUNDS On the ground that 1. In respect of warrants 4 to 8 the Applicant is not an extraditable person within s6 of the Extradition Act 1988 (Cth).' 6 The amended application, in this form, did not attempt to satisfy the conditional acceptance by Flick J that Mr Tervonen's arguments could be directed to proceedings concerned with s 16 of the Act, even if not aimed directly at Finland's request for his extradition. There is no reason, therefore, on the appeal, to make the assumption favoured by Flick J that the proceedings were capable of being refocused on s 16. 7 The amended application advanced on the appeal was directed at a later event in the extradition sequence. Section 22 of the Act is concerned with a determination by the Attorney-General (or responsible Minister) that a person found eligible for surrender under s 19 of the Act should, after final proceedings by way of review and appeal under s 21 of the Act, be surrendered to the requesting country. A final exercise of discretion is involved (s 22(3)(f)). The question whether the person is an "extraditable person" within the meaning of s 6(a)(i) of the Act does not arise, at least not in the form of a condition precedent to the exercise of discretion or final determination under s 22. As at present advised, I cannot see the legal foundation for the declaratory relief to be sought by the Further Amended Application. It appears to me to seek a bare declaration which would not decide rights or obligations in any legally binding way. In any event, such proceedings, if they are legally available, may be commenced independently when the occasion for a determination under s 22 of the Act arises. There is no need for us to deal on appeal with a matter which was not any part of Mr Tervonen's case before Flick J. 8 On the appeal, the Minister relied upon a notice of contention to the effect that the proceedings were liable to be dismissed by Flick J as incapable of success and that the appeal should be dismissed on that basis. In my view, that is the appropriate course to take. It is therefore only necessary to deal briefly with the other issues which were argued. 9 For reasons adverted to in the leave judgment at [19]-[22] I do not share the view expressed by Flick J that Mr Tervonen's application (to the extent it was capable of being seen as referable to s 16 of the Act) was required to be dismissed for the reasons given by Gyles J in Tervonen v Finland [2008] FCA 781. Gyles J was concerned with the operation of s 19 of the Act, rather than s 16 of the Act. 10 I also would not, speaking for myself, take as strict a view as Flick J about Mr Tervonen's latest attempt to challenge the foundation for his extradition and dismiss it as an abuse of process. Mr Tervonen has a real and substantial interest in resisting his extradition to Finland or, at least, minimising to the greatest extent possible the foundation for any such extradition (see the leave judgment at [34]). 11 However, I agree with Flick J that the course upon which Mr Tervonen wished to embark with his latest application was barred to him, even on the view of his application most favourable to him. The arguments that he wished to advance (accepting that they were capable of being related to the requirements of s 16 of the Act, even though that is not how his application was focused) were put to Rares J in proceedings concerning the application of s 16 and rejected (Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684). The matters which he sought to argue before Flick J invited a conclusion contrary to that reached by Rares J about the same legal issue. When an appeal by the Minister for Home Affairs against the judgment of Rares J was heard Mr Tervonen did not attempt to revive the arguments or advance them as a reason why the appeal should be rejected (see Minister for Home Affairs v Tervonen (2008) 166 FCR 91). The proceedings dismissed by Flick J were commenced after the appeal was filed. By persisting with those proceedings after the appeal was dealt with he sought, effectively, to go behind the judgment of the Full Court on the appeal that a notice given under s 16 of the Act was substantially valid. That notice was based, in part, upon an opinion by the responsible Minister that Mr Tervonen was an "extraditable person" within the meaning of s 6(a)(i) of the Act. Flick J concluded that to permit such a course would be contrary to the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 ('Anshun'). 12 Counsel for Mr Tervonen argued on the appeal that Anshun estoppel "should not be applied for the benefit of the executive in circumstances where this would result in an officer of the Commonwealth acting in want or excess of jurisdiction". There are, however, a number of difficulties with this proposition and its application to the present case. 13 First, any issue which Mr Tervonen might wish to argue concerning the validity of the notice under s 16 has been decided against him in proceedings to which he and the Minister were parties. To that extent, as the Minister submitted, an issue estoppel arises at law. It was not necessary to rely on Anshun estoppel. Flick J dealt with the proposition that Anshun estoppel was engaged presumably because that was one of the grounds specifically relied upon by the Minister to strike out the proceedings. 14 Secondly, it has been decided in a number of cases that Anshun estoppel may apply in a proceeding concerning judicial review of administrative action, even where the executive Government is involved (see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 at [37]-[39] and Applicants S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133 at [5]). 15 Thirdly, there could be no finding of jurisdictional error concerning an opinion (such as under s 16 of the Act) that Mr Tervonen was an "extraditable person" unless such an opinion was shown not to be open as a matter of law. That was precisely the issue decided by Rares J. There was no attempt made on the appeal to argue that Rares J's conclusion was wrong. 16 Had it been necessary to do so I would have dismissed the appeal for the reason that Flick J was correct to conclude that Mr Tervonen was effectively barred by issue estoppel or Anshun estoppel from pursuing the proceedings, even on the view most favourable to him about their legal content. 17 In my view, therefore, the appeal must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.