Tsvetnenko v United States of America

• Jurisdiction: Australia Federal only
• Judgment Date: 10 May 2019
• Neutral Citation: [2019] FCAFC 74
• Date: 10 May 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Tsvetnenko v United States of America [2019] FCAFC 74

Appeal from:	Tsvetnenko v United States of America [2019] FCA 206
File number:	WAD 137 of 2019
Judges:	BESANKO, BANKS-SMITH AND COLVIN JJ
Date of judgment:	10 May 2019
Catchwords:	EXTRADITION - appeal from decision of primary judge dismissing application to review decision of magistrate to refuse to remand the applicant on bail - consideration of proper construction of s 15(6) of the Extradition Act 1988 (Cth) - nature of discretionary power under s 15(2) of the Extradition Act - whether jurisdictional error in the magistrate's decision - consideration of 'special circumstances' - consideration of 'real risk of flight' - whether magistrate acted on an incorrect understanding of the law - whether magistrate's decision lacked an evident and intelligible justification and was therefore was legally unreasonable - appeal dismissed
Legislation:	Extradition Act 1988 (Cth) ss 12, 15, 19, 21, 45A, 45B Judiciary Act 1903 (Cth) s 39B
Cases cited:	Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297 Australian Postal Corporation v D'Rozario [2014] FCAFC 89; (2014) 222 FCR 303 Baker v Patrick Projects Pty Ltd [2014] FCAFC 165; (2014) 226 FCR 302 Barney v United Kingdom [2012] FCA 51; (2012) 215 FCR 570 CGA15 v Minister for Home Affairs [2019] FCAFC 46 Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 DPI17 v Minister for Home Affairs [2019] FCAFC 43 EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Kruger v Commonwealth of Australia [1997] HCA 27; (1997) 190 CLR 1 Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 R v Hickman; Ex Parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 Re Adams and the Tax Agents' Board (1976) 12 ALR 239 SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268 United Mexican States v Cabal [2001] HCA 61; (2001) 209 CLR 165 United States of America v Green [2009] FCA 638 Vasiljkovic v Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707
Date of hearing:	17 April 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	102
Counsel for the Appellant:	Mr AP Young QC with Ms LH Kirwan
Solicitor for the Appellant:	K & L Gates
Counsel for the First Respondent:	Mr EM Heenan
Solicitor for the First Respondent:	Commonwealth Attorney-General's Department
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		WAD 137 of 2019
BETWEEN:	EUGENI TSVETNENKO Appellant
AND:	UNITED STATES OF AMERICA First Respondent ; GIUSEPPE MIGNACCA-RANDAZZO Second Respondent

JUDGES:	BESANKO, BANKS-SMITH AND COLVIN JJ
DATE OF ORDER:	10 MAY 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent's costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. Charges have been brought in the United States of America against the appellant, Mr Tsvetnenko. The indictment alleges, amongst other things, that Mr Tsvetnenko was a participant in conspiracies to commit wire fraud and money laundering and participated in a fraudulent scheme to place unauthorised charges for text message services on mobile phones by a practice called 'auto‑subscribing'. It is alleged that many millions of dollars were earned by the scheme.

2. Mr Tsvetnenko was born in Russia. He immigrated to Australia in 1992 when he was 12 years old and has lived in Australia since then. He is an Australian citizen and holds both Australian and Russian passports. He was married in 2008, but is separated from his wife. There are two young children of the marriage.

3. A request for the extradition of Mr Tsvetnenko was made by the United States in July 2018. A warrant for his arrest was issued under s 12 of the Extradition Act 1988 (Cth) in November 2018. He was arrested on 20 December 2018 and since his arrest has been held in custody. Mr Tsvetnenko has challenged his eligibility for extradition but his challenge is yet to be determined.

4. On 29 January 2019 a magistrate refused an application for bail by Mr Tsvetnenko and he was remanded in custody. An urgent application for judicial review of the magistrate's decision was brought. The application was dismissed on 22 February 2019 and Mr Tsvetnenko now brings an appeal against that decision.

5. Amongst other things advanced to support his bail application before the magistrate, Mr Tsvetnenko said:

1. he has made clear that he is willing to surrender his passports to Australian authorities pending the hearing of his challenge to extradition;

2. he has known for some time of the charges brought against him and the steps being taken to seek his extradition, yet he has not taken steps to abscond;

3. he did not flee the United States and the charges relate to conduct alleged to have occurred principally or exclusively in Australia;

4. he has strong ties to people in Australia including his children and his parents and is not a risk to the community;

5. if he is held in custody then he will not be able to obtain appropriate medical treatment and there is a...