mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32 
Outcome: related
On 20 December 2007 I made orders pursuant to s 21(2)(b)(i) of the Extradition Act 1988 (Cth) (the Act) on the application of Jan Tervonen quashing an order of the second respondent made on 6 June 2007 that Tervonen 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 ( Tervonen v Finland [2007] FCA 2067). That decision was based upon the judgment of Rares J in Tervonen v Minister for Justice and Customs [2007] FCA 1684 ; (2007) 98 ALD 589 and consequent orders declaring invalid and quashing successive notices purporting to have been given pursuant to s 16 of the Act ( Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898). That basis for the decision meant that I did not need to consider the other arguments raised on behalf of Tervonen. The Full Court allowed an appeal from the decision of Rares J ( Minister for Home Affairs v Tervonen [2008] FCAFC 24 , corrected in Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32). Consequently, on 6 March 2008, the Full Court allowed an appeal from my earlier decision, set aside the orders that I had made and remitted the matter to me to be determined according to law ( Republic of Finland v Tervonen [2008] FCAFC 25). 36 The validity of the amended s 16 notice, excluding offences 55, 57 and 58, has been established by the decision of the Full Court in Minister for Home Affairs v Tervonen [2008] FCAFC 24 with supplementary reasons Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32. In any event, in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; 185 CLR 528 , Brennan CJ, Dawson and McHugh JJ said (at 539): "Lacking any power to review those decisions [including the giving of a s 16 notice], a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made."
Case: Minister for Home Affairs v Tervonen [2008] FCAFC 24 
Outcome: related
On 20 December 2007 I made orders pursuant to s 21(2)(b)(i) of the Extradition Act 1988 (Cth) (the Act) on the application of Jan Tervonen quashing an order of the second respondent made on 6 June 2007 that Tervonen 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 ( Tervonen v Finland [2007] FCA 2067). That decision was based upon the judgment of Rares J in Tervonen v Minister for Justice and Customs [2007] FCA 1684 ; (2007) 98 ALD 589 and consequent orders declaring invalid and quashing successive notices purporting to have been given pursuant to s 16 of the Act ( Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898). That basis for the decision meant that I did not need to consider the other arguments raised on behalf of Tervonen. The Full Court allowed an appeal from the decision of Rares J ( Minister for Home Affairs v Tervonen [2008] FCAFC 24 , corrected in Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32). Consequently, on 6 March 2008, the Full Court allowed an appeal from my earlier decision, set aside the orders that I had made and remitted the matter to me to be determined according to law ( Republic of Finland v Tervonen [2008] FCAFC 25). 36 The validity of the amended s 16 notice, excluding offences 55, 57 and 58, has been established by the decision of the Full Court in Minister for Home Affairs v Tervonen [2008] FCAFC 24 with supplementary reasons Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32. In any event, in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; 185 CLR 528 , Brennan CJ, Dawson and McHugh JJ said (at 539): "Lacking any power to review those decisions [including the giving of a s 16 notice], a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made."
Case: Republic of Finland v Tervonen [2008] FCAFC 25 
Outcome: related
On 20 December 2007 I made orders pursuant to s 21(2)(b)(i) of the Extradition Act 1988 (Cth) (the Act) on the application of Jan Tervonen quashing an order of the second respondent made on 6 June 2007 that Tervonen 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 ( Tervonen v Finland [2007] FCA 2067). That decision was based upon the judgment of Rares J in Tervonen v Minister for Justice and Customs [2007] FCA 1684 ; (2007) 98 ALD 589 and consequent orders declaring invalid and quashing successive notices purporting to have been given pursuant to s 16 of the Act ( Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898). That basis for the decision meant that I did not need to consider the other arguments raised on behalf of Tervonen. The Full Court allowed an appeal from the decision of Rares J ( Minister for Home Affairs v Tervonen [2008] FCAFC 24 , corrected in Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32). Consequently, on 6 March 2008, the Full Court allowed an appeal from my earlier decision, set aside the orders that I had made and remitted the matter to me to be determined according to law ( Republic of Finland v Tervonen [2008] FCAFC 25).
Case: Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898
Outcome: related
On 20 December 2007 I made orders pursuant to s 21(2)(b)(i) of the Extradition Act 1988 (Cth) (the Act) on the application of Jan Tervonen quashing an order of the second respondent made on 6 June 2007 that Tervonen 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 ( Tervonen v Finland [2007] FCA 2067). That decision was based upon the judgment of Rares J in Tervonen v Minister for Justice and Customs [2007] FCA 1684 ; (2007) 98 ALD 589 and consequent orders declaring invalid and quashing successive notices purporting to have been given pursuant to s 16 of the Act ( Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898). That basis for the decision meant that I did not need to consider the other arguments raised on behalf of Tervonen. The Full Court allowed an appeal from the decision of Rares J ( Minister for Home Affairs v Tervonen [2008] FCAFC 24 , corrected in Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32). Consequently, on 6 March 2008, the Full Court allowed an appeal from my earlier decision, set aside the orders that I had made and remitted the matter to me to be determined according to law ( Republic of Finland v Tervonen [2008] FCAFC 25).
Case: Tervonen v Minister for Justice and Customs [2007] FCA 1684 ; (2007) 98 ALD 589 
Outcome: related
On 20 December 2007 I made orders pursuant to s 21(2)(b)(i) of the Extradition Act 1988 (Cth) (the Act) on the application of Jan Tervonen quashing an order of the second respondent made on 6 June 2007 that Tervonen 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 ( Tervonen v Finland [2007] FCA 2067). That decision was based upon the judgment of Rares J in Tervonen v Minister for Justice and Customs [2007] FCA 1684 ; (2007) 98 ALD 589 and consequent orders declaring invalid and quashing successive notices purporting to have been given pursuant to s 16 of the Act ( Tervonen v Minister for Justice and Customs (No 3) [2007] FCA 1898). That basis for the decision meant that I did not need to consider the other arguments raised on behalf of Tervonen. The Full Court allowed an appeal from the decision of Rares J ( Minister for Home Affairs v Tervonen [2008] FCAFC 24 , corrected in Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32). Consequently, on 6 March 2008, the Full Court allowed an appeal from my earlier decision, set aside the orders that I had made and remitted the matter to me to be determined according to law ( Republic of Finland v Tervonen [2008] FCAFC 25). 20 It appears that Tervonen put a similar argument to Rares J in the proceeding challenging the validity of the s 16 notice see Tervonen [2007] FCA 1684 ; 98 ALD 589 at [33] [44]. Rares J decided that it was open to the Minister to form the relevant opinion but did not consider the correctness or otherwise of that opinion, the proceeding before him being a challenge on administrative law grounds. 21 In my opinion, it is tolerably clear in the present case that only the first three warrants would normally be regarded as being "for the arrest of the person for the offence", the other warrants being connected with coercive investigation. To borrow from Art 1 of the Treaty, it was only those warrants by which Tervonen had been charged by a competent authority with the relevant offences against the law of Finland, bearing in mind that an extradition treaty must be a treaty relating to the surrender of persons accused or convicted of offences (s 5). That conclusion is assisted by the failure of Finland to produce material to the Magistrate explaining the system as it applied to the issues in the case.
Case: Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121
Outcome: cited
The general nature of the jurisdiction pursuant to s 21 of the Act is not in doubt it is a rehearing in which the Court reaches its own conclusions on the eligibility for surrender, although only having regard to the material before the Magistrate ( Dutton v O'Shane [2003] FCAFC 195 ; (2003) 132 FCR 352 at 386; Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121 per Black CJ at [20] [24] and [29] and Rares J at [73] [80]). Tervonen challenges both satisfaction of the conditions precedent in s 19(1) and the conclusions on the merits of surrender reached by the Magistrate pursuant to s 19(2). In Tervonen [2007] FCA 2067 (at [6] [9]), I discussed the question as to how a review is to be conducted in relation to s 19(1). It is convenient to deal with the questions arising pursuant to s 19(2) in the first instance.
Case: Dutton v O'Shane [2003] FCAFC 195 ; (2003) 132 FCR 352 at 386
Outcome: cited
The general nature of the jurisdiction pursuant to s 21 of the Act is not in doubt it is a rehearing in which the Court reaches its own conclusions on the eligibility for surrender, although only having regard to the material before the Magistrate ( Dutton v O'Shane [2003] FCAFC 195 ; (2003) 132 FCR 352 at 386; Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121 per Black CJ at [20] [24] and [29] and Rares J at [73] [80]). Tervonen challenges both satisfaction of the conditions precedent in s 19(1) and the conclusions on the merits of surrender reached by the Magistrate pursuant to s 19(2). In Tervonen [2007] FCA 2067 (at [6] [9]), I discussed the question as to how a review is to be conducted in relation to s 19(1). It is convenient to deal with the questions arising pursuant to s 19(2) in the first instance.
Case: Kainhofer v Director of Public Prosecutions (1994) 52 FCR 341 
Outcome: discussed
However, counsel for Finland submits that this argument is effectively foreclosed to Tervonen by the decision of the High Court in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528. There are certainly similarities between that case and this, as extradition was sought by the Republic of Austria, a civil law country as is Finland. The Full Court of this Court had held that, on the material placed before the Magistrate on behalf of the Republic of Austria, he could not properly be satisfied in terms of s 19(2)(a) and s 19(3)(a) of the Act that the duly authenticated warrant that he had before him provided for the arrest of the appellant as a person "accused" of the offences to which the warrant referred ( Kainhofer v Director of Public Prosecutions (1994) 52 FCR 341 at 359G). The Court had held that the Act and the Treaty with Austria (which appears to be similar to that in the present case) provided for the surrender of a person only if the person was "accused" or convicted of an extradition offence. Their Honours said ( Kainhofer 52 FCR at 358 359): "Neither the Act nor the Treaty, however, defines the circumstances in which a person is to be regarded as being "accused" of the offence or offences in respect of which surrender is sought. In the jurisprudence of this country, one would not normally speak of a person as a person who is "accused" of a criminal offence in the sense in which that expression is used in the Act unless legal proceedings for the imposition of a penalty in respect of the offence have been commenced by the laying before a magistrate or other appropriate official of an information or complaint alleging the commission of the offence or by the presentation to a court of an indictment alleging such commission or unless the person has been formally charged with the offence before an appropriate official following upon his arrest. That statement may not be exhaustive but, in any event, it would not be sufficient to establish that a person was "accused" of an offence to show only that a complaint had been made to the police alleging the commission of the offence or that the police, or other investigating body, were conducting inquiries to determine whether there was evidence of the commission of the offence sufficient to warrant the person being "accused" of the offence in the sense mentioned."
Case: Zoeller v Federal Republic of Germany (1989) 23 FCR 282
Outcome: applied
Tervonen argues that at least one charge (offence 5) is barred by a time limitation in Finland and that the limitation of time in relation to offence 8 and offence 9 expired on 5 July 2007. It is submitted for Finland that that question is irrelevant as it does not arise pursuant to s 19(2). That proposition follows from the wording of the section together with the authority of the Court in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 303. Tervonen submits that this should be qualified because Art 7(2)(d) of the Treaty requires setting out the relevant provisions of the statute creating the offence or a statement of the relevant law as to the offence including any law relating to the limitation of proceedings. It was also submitted on behalf of Finland that, certainly in relation to the first warrant, it is clear that criminal proceedings were commenced within the limitation period. 32 Whilst the effect of the Treaty when combined with s 11 of the Act may be to require production of information as to time limitations, there is nothing in the Treaty or the Act which would entitle the Magistrate to take that information into account in deciding eligibility for surrender. This may seem anomalous, but presumably the Attorney-General can take that information into account in exercising the discretions in relation to surrender pursuant to s 22 of the Act as well as the earlier discretion pursuant to s 16.
Case: SZJRW &amp; Anor v Minister for Immigration &amp; Anor [2007] FMCA 1099
Outcome: cited
This is an appeal from orders of the Federal Magistrates Court made on 11 July 2007 dismissing an application for review of a decision of the Refugee Review Tribunal ('Tribunal'): SZJRW &amp; Anor v Minister for Immigration &amp; Anor [2007] FMCA 1099. On 19 October 2006, the Tribunal published its decision to affirm a decision of the delegate of the first respondent ('the Minister') to refuse to grant each appellant a protection visa under the provisions of the Migration Act 1958 (Cth) ('the Act'). 2 Appellant SZJRW, the primary appellant, is a citizen of the People's Republic of China ('China') who sought a protection visa based upon a contended well-founded fear of persecution on the ground of his participation in protests against the government of China, that is, by reason of his political opinion. Appellant SZKEM is his wife and sought a protection visa as a family member of the primary appellant. 3 In these reasons, I will use the term 'the appellant' as a reference to the circumstances, findings and contentions concerning the primary appellant unless otherwise apparent.
Case: NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10
Outcome: cited
The appellant says a proper inference can not be drawn from the country information relied upon by the Tribunal that an applicant for a passport is of no interest to PRC authorities on grounds of prior protest conduct for reasons of political opinion, simply because the applicant obtains a passport and achieves an objective of lawfully leaving China. However, five things should be noted. First, the Tribunal was entitled to prefer the country information it obtained and rely upon it in discharging its fact-finding role ( NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10 [11] and [41], relying upon VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 ; (2005) 141 FCR 291 and VAO v Minister for Immigration and Multicultural Affairs [2002] FCA 161 at [25] ). Secondly, the finding is primarily supported by the Tribunal's assessment of the appellant's evidence. Thirdly, the appellant accepted that he had not engaged in protest activity and explained the conjunction of circumstances causing that to be so. Fourthly, even if no proper inference arises out of the older country information, the Tribunal did not act on 'no evidence' in reaching its finding as evidence (that is, the appellant's own evidence) supported the finding. Fifthly, the question of whether there is any evidence of a particular fact is a question of law just as whether a particular inference can be drawn from facts found or agreed is a question of law. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, clearly enough, there is no error of law in simply making a wrong finding of fact. In addition, even if the reasoning upon which the decision-maker reached its conclusion of fact is demonstrated to be unsound, that would not amount to error of law ( Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ; (2002) 65 ALD 141 per Sundberg, Emmett and Finkelstein JJ at [34]). Even if it is accepted that the earlier country information did not support an inference drawn by the Tribunal, there was nevertheless evidence before the Tribunal supporting the findings of fact.
Case: VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 ; (2005) 141 FCR 291
Outcome: cited
The appellant says a proper inference can not be drawn from the country information relied upon by the Tribunal that an applicant for a passport is of no interest to PRC authorities on grounds of prior protest conduct for reasons of political opinion, simply because the applicant obtains a passport and achieves an objective of lawfully leaving China. However, five things should be noted. First, the Tribunal was entitled to prefer the country information it obtained and rely upon it in discharging its fact-finding role ( NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10 [11] and [41], relying upon VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 ; (2005) 141 FCR 291 and VAO v Minister for Immigration and Multicultural Affairs [2002] FCA 161 at [25] ). Secondly, the finding is primarily supported by the Tribunal's assessment of the appellant's evidence. Thirdly, the appellant accepted that he had not engaged in protest activity and explained the conjunction of circumstances causing that to be so. Fourthly, even if no proper inference arises out of the older country information, the Tribunal did not act on 'no evidence' in reaching its finding as evidence (that is, the appellant's own evidence) supported the finding. Fifthly, the question of whether there is any evidence of a particular fact is a question of law just as whether a particular inference can be drawn from facts found or agreed is a question of law. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, clearly enough, there is no error of law in simply making a wrong finding of fact. In addition, even if the reasoning upon which the decision-maker reached its conclusion of fact is demonstrated to be unsound, that would not amount to error of law ( Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ; (2002) 65 ALD 141 per Sundberg, Emmett and Finkelstein JJ at [34]). Even if it is accepted that the earlier country information did not support an inference drawn by the Tribunal, there was nevertheless evidence before the Tribunal supporting the findings of fact.
Case: VAO v Minister for Immigration and Multicultural Affairs [2002] FCA 161
Outcome: cited
The appellant says a proper inference can not be drawn from the country information relied upon by the Tribunal that an applicant for a passport is of no interest to PRC authorities on grounds of prior protest conduct for reasons of political opinion, simply because the applicant obtains a passport and achieves an objective of lawfully leaving China. However, five things should be noted. First, the Tribunal was entitled to prefer the country information it obtained and rely upon it in discharging its fact-finding role ( NAHI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 10 [11] and [41], relying upon VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 ; (2005) 141 FCR 291 and VAO v Minister for Immigration and Multicultural Affairs [2002] FCA 161 at [25] ). Secondly, the finding is primarily supported by the Tribunal's assessment of the appellant's evidence. Thirdly, the appellant accepted that he had not engaged in protest activity and explained the conjunction of circumstances causing that to be so. Fourthly, even if no proper inference arises out of the older country information, the Tribunal did not act on 'no evidence' in reaching its finding as evidence (that is, the appellant's own evidence) supported the finding. Fifthly, the question of whether there is any evidence of a particular fact is a question of law just as whether a particular inference can be drawn from facts found or agreed is a question of law. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, clearly enough, there is no error of law in simply making a wrong finding of fact. In addition, even if the reasoning upon which the decision-maker reached its conclusion of fact is demonstrated to be unsound, that would not amount to error of law ( Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ; (2002) 65 ALD 141 per Sundberg, Emmett and Finkelstein JJ at [34]). Even if it is accepted that the earlier country information did not support an inference drawn by the Tribunal, there was nevertheless evidence before the Tribunal supporting the findings of fact.