Tervonen v Finland [2007] FCA 2067

Tervonen v Finland [2007] FCA 2067

Because Rares J had declared invalid and quashed the successive notices purporting to have been given under s 16, the requirement in s 19(1)(b) did not exist. A necessary precondition to the magistrate's s 19 order was therefore absent, so the order could not survive. Under s 21(2)(b)(i), the Court quashed the magistrate's order and directed that the applicant be released; even if there were a discretion to withhold relief, it would not be exercised against the applicant. The proposed amendment to add the Minister and seek declaratory relief was refused because the proceeding should not be used to resolve all issues connected with the extradition after the hearing had been completed on a...

Jurisdiction
Australia
Judgment Date
20 December 2007
Procedural Posture
Review Under S 21 of the Extradition Act 1988 (cth) of a Magistrate's Surrender Determination Under S 19 / Reasons for Judgment and Final Orders; Application to Amend Refused
Outcome
Application for review allowed; magistrate's order quashed; release directed; amendment refused; Finland ordered to pay the applicant's costs except for 18 December 2007.
Legal Topics
["review of Magistrate's Surrender Determination" 'validity of S 16 Notice' 'eligibility for Surrender' 'release From Custody' 'discretion to Withhold Relief' 'joinder and Amendment']
['extradition' 'administrative Law' 'federal Court Procedure'] ["review of Magistrate's Surrender Determination" 'validity of S 16 Notice' 'eligibility for Surrender' 'release From Custody' 'discretion to Withhold Relief' 'joinder and Amendment']

Case Brief

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Procedural Posture

Review Under S 21 of the Extradition Act 1988 (cth) of a Magistrate's Surrender Determination Under S 19 / Reasons for Judgment and Final Orders; Application to Amend Refused

Legal Issues

  1. 1 ['Whether the Federal Court review under s 21 encompassed the requirements in s 19(1) of the Extradition Act 1988 (Cth).' "Whether the absence of a valid notice under s 16 meant that the condition in s 19(1)(b) did not exist and the magistrate's order could not survive." 'Whether the Court had a discretion under s 21(2) to withhold relief despite the failed precondition.' 'Whether the applicant should be permitted to amend the proceeding to add the Minister for Justice and Customs and seek declaratory relief about detention.']

Ratio Decidendi

Because Rares J had declared invalid and quashed the successive notices purporting to have been given under s 16, the requirement in s 19(1)(b) did not exist. A necessary precondition to the magistrate's s 19 order was therefore absent, so the order could not survive. Under s 21(2)(b)(i), the Court quashed the magistrate's order and directed that the applicant be released; even if there were a discretion to withhold relief, it would not be exercised against the applicant. The proposed amendment to add the Minister and seek declaratory relief was refused because the proceeding should not be used to resolve all issues connected with the extradition after the hearing had been completed on a...

Court Disposition

Application for review allowed; magistrate's order quashed; release directed; amendment refused; Finland ordered to pay the applicant's costs except for 18 December 2007.

Orders

  • ['The order of the second respondent, Magistrate Paul Lyons, made on 6 June 2007 be quashed.' 'The second respondent, or in his absence any magistrate of New South Wales in respect of whom an arrangement is in force under s 46 of the Extradition Act 1988 (Cth), order the release of the applicant, Jan Tervonen, from...