Case: Tervonen v Finland [2007] FCA 2067 
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). 2 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. 33 I need not repeat the discussion concerning the proper approach to this provision in a s 21 review set out in Tervonen [2007] FCA 2067 at [6] [9]. The approach most favourable to Tervonen is that the issues are to be decided on the merits. I will consider them on that basis in the first instance. 34 Section 19(1) is as follows: "(1) Where: (a) a person is on remand under section 15; (b) the Attorney General has given a notice under subsection 16(1) in relation to the person; (c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and (d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings; the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country." 35 Tervonen does not dispute that he was arrested pursuant to a provisional arrest warrant and was remanded in custody pursuant to s 15 of the Act on 4 July 2006 and then again on 8 March 2007. However, he claims that he was not on remand in relation to all of the extradition offences. That may be correct in one sense as the amended s 16 notice was served after the second remand, but I accept the submission on behalf of Finland that s 19(1) does not require that the applicant be on remand pursuant to s 15 in relation to each and every extradition offence. In any event, the point is academic in the sense that the offences which had been added after the last remand (57 and 58) are now excluded because of the decision of the Full Court as to the s 16 notice.