Chapter 11
Extradition and refugee proceedings


11.1The Immigration Act 2009 provides that a person may claim “refugee status” in New Zealand under the Convention relating to the Status of Refugees (Refugee Convention), or “protected person status” under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) or the International Covenant on Civil and Political Rights (the ICCPR).330 Either status entitles the person to certain rights against being deported from New Zealand.331 These claims are determined by government officials in the first instance,332 with the possibility of an appeal to an independent tribunal.333 For the purpose of this chapter we refer to the determination of these claims as refugee proceedings.

11.2It is not uncommon for a person to claim refugee or protected person status under the Immigration Act, and to be the subject of an extradition request. In those circumstances, the overlap between the refugee proceeding and any extradition proceeding would be extensive. Both would involve consideration of alleged criminal offending and the likelihood of serious human rights violations if the person was forcibly returned to a foreign country. The same information/evidence would be relevant to both proceedings. Furthermore, the Refugee Convention, the Convention against Torture and the ICCPR would be directly relevant to both of the final decisions.

11.3The difficulty is that, at present, there is no statutory guidance as to how extradition and refugee proceedings relate to each other. As a result, there is currently potential for the extradition and immigration authorities in New Zealand to make irreconcilable final decisions in relation to the same person.

11.4In this chapter we examine the problem of overlap. We outline the extent of the overlap between extradition and refugee proceedings, and explain our policy for how this overlap should be managed in the future. We include recommendations for clauses that should be in the Extradition Bill and amendments that should be made to the Immigration Act. We have not taken the extra step of including the necessary clauses in our proposed Extradition Bill. That is because the details of those clauses will need to be drafted in conjunction with the amendments to the Immigration Act and with extensive technical assistance from immigration specialists.

330Convention relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July 1951, entered into force 22 April 1954) [Refugee Convention], arts 33(1) and 33(2); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987) [Convention against Torture], art 3; International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976) [ICCPR], arts 6–7.
331Immigration Act 2009, s 164.
332Immigration Act 2009, s 127(1).
333Immigration Act 2009, s 198.