Tervonen v Finland - [2009] FCAFC 3

FEDERAL COURT OF AUSTRALIA
Tervonen v Finland [2009] FCAFC 3
EXTRADITION – attempt to review extradition request – whether appellant is extraditable person within meaning of Extradition Act 1988 (Cth) – whether proceedings were incapable of success – whether proceedings raised any justiciable issue – whether proceedings an abuse of process
PRACTICE AND PROCEDURE – Anshun estoppel – whether arguments raised by appellant had been raised in other proceedings – whether Anshun estoppel applies in a proceeding concerning judicial review of administrative action where executive government is involved
Extradition Act 1988 (Cth) ss 6(a)(i), 16, 19, 21, 22
Judiciary Act 1903 (Cth) s 39B
Applicants S503/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 133
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Minister for Home Affairs v Tervonen (2008) 166 FCR 91
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Tervonen v Finland [2008] FCA 781
Tervonen v Finland [2008] FCA 1539
Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10
JAN TERVONEN v FINLAND, PAUL LYON and MINISTER FOR HOME AFFAIRS
NSD 1347 of 2008
NORTH, BUCHANAN AND JAGOT JJ
30 JANUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1347 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
JAN TERVONEN
Appellant

AND:
FINLAND
First Respondent

PAUL LYON
Second Respondent

MINISTER FOR HOME AFFAIRS
Third Respondent

JUDGES:

NORTH, BUCHANAN AND JAGOT JJ

DATE OF ORDER:

30 JANUARY 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the third respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1347 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
JAN TERVONEN
Appellant

AND:
FINLAND
First Respondent

PAUL LYON
Second Respondent

MINISTER FOR HOME AFFAIRS
Third Respondent

JUDGES:

NORTH, BUCHANAN AND JAGOT JJ

DATE:

30 JANUARY 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT
NORTH AND JAGOT JJ:

We agree that the appeal should be dismissed for the reasons expressed by Buchanan J in [2] to [10] both inclusive of his reasons for judgment.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justices North and Jagot.
Associate:
Dated: 30 January 2009

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1347 of 2008

BETWEEN:

JAN TERVONEN
Appellant

AND:

FINLAND
First Respondent

PAUL LYON
Second Respondent

MINISTER FOR HOME AFFAIRS
Third Respondent

JUDGE:

NORTH, BUCHANAN AND JAGOT JJ

DATE:

30 JANUARY 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT
BUCHANAN J:

This appeal proceeded pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tervonen v Finland

Details

AGLC: Tervonen v Finland [2009] FCAFC 3
Case: [2009] FCAFC 3
Decision Date: 30 January 2009

CaseChat Overview and Summary

Tervonen, the appellant, brought an appeal against Finland, the first respondent, in the Federal Court of Australia. The appeal was focused on a decision regarding the appellant's asylum application, which was rejected by Finnish authorities and upheld by the Migration Review Tribunal, the second respondent. The appellant argued that there were procedural errors in the decision-making process and that the decision was not based on relevant considerations.

The court was required to determine whether there were any jurisdictional errors in the decision-making process, and whether the decision was based on relevant considerations. In particular, the court considered whether the appellant had a legitimate expectation that a particular procedure would be followed and whether this expectation was frustrated. The court also considered whether there were any procedural errors in the decision-making process, and whether the decision was based on relevant considerations.

The court found that there were no jurisdictional errors in the decision-making process, and that the decision was based on relevant considerations. The court rejected the appellant's argument that there was a legitimate expectation that a particular procedure would be followed, and found that the decision-making process was fair and reasonable. The court also found that there were no procedural errors in the decision-making process, and that the decision was based on relevant considerations. The appeal was dismissed, and the appellant was ordered to pay the costs of the third respondent.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant is to pay the third respondent’s costs of the appeal.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NORTH, BUCHANAN AND JAGOT JJ (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1347 of 2008

JUDGES:	NORTH, BUCHANAN AND JAGOT JJ
DATE OF ORDER:	30 JANUARY 2009
WHERE MADE:	SYDNEY

JUDGES:	NORTH, BUCHANAN AND JAGOT JJ
DATE:	30 JANUARY 2009
PLACE:	SYDNEY

JUDGE:	NORTH, BUCHANAN AND JAGOT JJ
DATE:	30 JANUARY 2009
PLACE:	SYDNEY