Case: Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 , 164 FCR 116
Outcome: considered
But what has been the subject of challenge is the response of the Respondent Minister upon receipt of that request. The then Minister issued a notice pursuant to s 16 of the Extradition Act 1988 (Cth) on 18 August 2006; the Minister also issued an " amended notice " on 30 April 2007. A further notice pursuant to s 16 was issued on 11 November 2007 in respect to the same request. 8 The manner in which Mr Tervonen contends that the request does not comply with the Treaty is understood to be a contention that the request made by Finland was not in respect to " an offence or offences against the law " of Finland within the meaning of, and for the purposes of, s 6(a)(i) of the Extradition Act 1988 (Cth). 9 Section 6 of the Extradition Act 1988 (Cth) provides as follows: Meaning of extraditable person Where: (a) either: (i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or (ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and: (A) there is an intention to impose a sentence on the person as a consequence of the conviction; or (B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served; (b) the offence or any of the offences is an extradition offence in relation to the country; and (c) the person is believed to be outside the country; the person is, for the purposes of this Act, an extraditable person in relation to the country. 10 The argument now being advanced by Mr Tervonen focuses upon the meaning to be given to the words " accused " or " offence ". He contends that the extradition request as made, and the supporting material provided, expose the fact that some of the warrants relied upon by Finland were warrants for his arrest for pre-trial investigation purposes rather than for trial for " offences ". 26 An abuse of process arises where arguments or contentions should have been raised in earlier proceedings: eg, Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 , 164 FCR 116 , particularly at [14] [18] per Rares J. As His Honour Justice Handley put it, writing extra-judicially, "[i] n the language of the stud book, one might say that Anshun was by abuse of process out of Henderson v Henderson": Anshun Today , (1997) 71 ALJ 934. 36 However that argument may be resolved in relation to that form of relief, the Respondent Minister does not dispute (at least for present purposes) the jurisdiction of this Court to review -- for example -- whether a person is an " extraditable person " within the meaning of s 6 of the Extradition Act 1988 (Cth) and a person who may be the subject of a notice issued under s 16 of that Act. It would not be necessary to trespass into the question as to the validity of an " extradition request " where such a request did not seek the extradition of a person for an " extradition offence " or where there was manifestly no warrant " for the arrest of a person in relation to an offence "; judicial review could be sought in respect to any subsequent decision or threatened decision which sought to give effect to such a request. 37 The force of the present submission advanced by the Minister, and the comparative weakness of the position of Mr Tervonen, is that such judicial review as is now sought attempts to isolate out and review, as a discrete step in the extradition process, the making of the request -- a step which precedes any decision or conduct which is authorised by the 1988 Act. No provision of the Extradition Act authorises the making of a request by a foreign country; the Act simply contemplates what is to happen when such a request is made by an " extradition country ". 38 It is presumably for this reason that the present Amended Application seeks not only declaratory relief in respect to the request, but also a " writ of prohibition " prohibiting any effect being given to the request as made by Finland. And it is presumably for the same reason that no reliance has been placed by Mr Tervonen upon the Administrative Decisions (Judicial Review) Act 1977 (Cth). At a point of time when all that has occurred is the making of a request, there is certainly no decision " under an enactment " as required by the 1977 Act. In some circumstances, relief in the nature of prohibition against an " officer of the Commonwealth " may, however, be appropriate pursuant to s 39B(1) of the Judiciary Act 1903 (Cth).