Contents

Chapter 11
Extradition and refugee proceedings

Our recommendation for sequencing the proceedings

11.39By enacting Part 5 of the Immigration Act, Parliament has already determined that the RSB and the IPT should decide whether New Zealand’s non-refoulement obligations are engaged under the Refugee Convention, the Convention against Torture and the ICCPR. These institutions were established to make these kinds of decisions. Unlike the District Court, the RSB and the IPT operate on an inquisitorial basis, without formal rules of evidence. This allows for greater flexibility in gathering and assessing large volumes of information on human rights abuses overseas. Particularly for a refugee claim, we view the Immigration Act as the logical home for this decision even if it has a significant impact on extradition proceedings.371 Accordingly, we recommend that no extradition order should be made until any refugee proceeding has been finally determined.

11.40However, we see merit in the District Court deciding whether the criteria for extradition are met before a final decision is made in the refugee proceeding. The main benefit of this approach is that it will show whether there is an evidential basis for the allegation of criminal offending. Ordinarily, this type of evidence is very difficult to obtain in refugee proceedings. That is because the confidentiality provisions in the Immigration Act prevent the RSB and the IPT from making direct enquiries of the foreign country. If, however, extradition proceedings are initiated and run in parallel, then the RSB and the IPT will be able to access crucial information from the foreign authorities. This information will include details about the alleged offending and potentially assurances gathered by the Central Authority or the Minister as to how the person would be treated upon return, during any trial and while serving any sentence.

11.41For the same reason, we consider the Central Authority should have scope (albeit limited) to commence extradition proceedings in relation to a person who already has refugee status. Obviously, the person’s refugee status will be a major factor weighing against the likelihood of extradition. The extradition request may, however, contain evidence about criminal offending that the immigration authorities were previously unaware of. This evidence may necessitate the person’s refugee status being re-considered and possibly cancelled.

11.42It should be noted that we are not entirely comfortable with the principle of using the disclosure procedures in one proceeding to gather information for a separate proceeding. However, this seems to us to be the best pathway to ensure that appropriate and consistent decisions are made relating to the non-refoulement obligations.

Recommendations

371This is already recognised in s 125(1) of the Immigration Act 2009, which states: “Every person who seeks recognition as a refugee in New Zealand under the Refugee Convention must have that claim determined in accordance with this Act.”