11.9Any reform of this area of the law requires an understanding of the overlap between the two sets of proceedings.
11.10Under international refugee and human rights law, New Zealand is obliged not to extradite or deport a person if:
11.12In relation to extradition, the non-refoulement obligations are reflected in the grounds for refusal that are considered by the Central Authority, the Court or the Minister. The safeguards concerning speciality and prohibiting re-extradition to a third country provide related protection.
11.13In relation to deportation (as opposed to extradition), these obligations are recognised through Part 5 of the Immigration Act. This Part contains the procedure for granting a person refugee status (if the Refugee Convention applies) or protected person status (if the Convention against Torture or the ICCPR applies).
|Discrimination ground for refusal in the Extradition Bill||Similarities||Differences|
|The Court must refuse to extradite a person if the extradition of the respondent: |
(i) is actually sought for the purpose of prosecuting or punishing the respondent on account of his or her race, ethnic origin, religion. nationality, age, sex, sexual orientation, disability, or other status or political opinions; or
(ii) may result in the respondent being prejudiced at trial, punished, detained or restricted in his or her personal liberty because of any of those grounds.346
|The potential reasons for persecution under the Refugee Convention and for discrimination under the Extradition Bill are very similar. To qualify as persecution, mere difference in treatment is not enough. There must be resultant serious harm. Similarly, in the context of extradition, the discrimination must either be the main reason for the request or must prejudice the entire trial or sentencing process.||The extradition ground for refusal is limited to discrimination during the trial and/or punishment process. The concept of persecution in the Refugee Convention contains no such limitation.|
11.17The table shows that, in theory, these decisions are very similar. In practice, a person who is the subject of an extradition request may well make a refugee claim on the basis that the requesting country is persecuting them by pursuing an illegitimate prosecution or punishment.
11.18However, the two decisions are not the same. For instance, a refugee who faces a risk of general persecution (unconnected to the criminal justice process), would not be protected from extradition by the discrimination ground. Therefore, a finding of persecution or discrimination in one proceeding may inform the other proceeding but should not automatically be determinative.
|Aspect of the exclusion ground in the Refugee Convention||Equivalent test in the Extradition Bill||Similarities||Differences|
|“serious reasons for considering”||In standard extradition proceedings where the person sought is accused of offending, one of the criteria for extradition is that there must be “a case to answer”.349 |
There is no consideration of the strength of the case if the person sought has already been convicted of offending.350
|Both tests look at whether there is any evidential basis for an allegation of criminal offending.||The “serious reasons” test in the Refugee Convention requires an assessment of the whole criminal case, including the credibility of witnesses and defences. There is no criminal or civil standard of proof nor rules of evidence because it is not a court hearing.351 |
The “case to answer” test in the Bill is the subject of a formal adversarial hearing. Defence evidence and witness credibility are only relevant to the extent that they would amount to a complete and irrefutable answer to the case.352
|“serious crime”||The existence of an “extradition offence” is one of the criteria for extradition.353||Both tests look at the seriousness of alleged criminal offending. Only sufficiently serious offending will qualify.||To be a “serious crime” under the Refugee Convention the crime must be likely to attract a severe penalty, at least a number of years of imprisonment. In determining the likely sentence, the court must take into account all of the circumstances of the crime and the offender, and the likely penalty both in New Zealand and, to a lesser extent, the foreign country.354 |
Part of the test for an “extradition offence” in the Bill is whether the maximum penalties for the foreign offence and its New Zealand equivalent are two years’ imprisonment or more or whether the offence is listed as an extradition offence in an applicable treaty.355 These are generic tests that focus on the type of offending and do not involve any consideration of the facts of the individual case.
|“non-political crime”||The Court must refuse an extradition request if the relevant offence is a “political offence”.356||Both tests examine whether the alleged offending was political in nature. The tests have evolved from the same case law and any distinction would be very minor.||No significant difference.|
11.22Because of the different way in which the hearings are conducted, however, for the purpose of the exclusion test in the refugee proceedings it is possible to imagine a case meeting the threshold for there being “a case to answer” for the purpose of extradition, but falling short of there being “serious reasons to consider” that the person committed the offence. Similarly, because the seriousness threshold is lower in extradition cases, a person could commit an offence that would be serious enough to justify extradition but not so serious as to disqualify them from obtaining refugee status. The result is that, unless additional provisions are included in our proposed Extradition Bill (as we recommend at the end of this chapter) a refugee could be found liable for extradition.
11.26Part 5 of the Immigration Act creates two kinds of protected person status depending on whether the Convention against Torture or the ICCPR is engaged.
11.29As indicated above, the Extradition Bill includes “cruel treatment” as part of the torture ground for refusal. Aside from that difference and the exclusion for “lawful sanctions”, the test related to cruel treatment in the Immigration Act and our proposed Extradition Bill, is similar.
11.30By contrast, the Immigration Act and our Bill take quite different approaches to the ICCPR deprivation of life issue. Our proposed Extradition Bill has no individual ground for refusal that replicates the ICCPR protection against “arbitrary deprivation of life”. Instead, this concept is addressed through the “death penalty” and the “unjust and oppressive” grounds for refusal.
(a) If the person is at risk of the death penalty, then the Immigration Act and our proposed Extradition Bill will operate in the same way. If there is a real risk that the death penalty will be imposed, the person will not be deported or extradited.
(b) If a person is at risk of arbitrary deprivation of life, other than by virtue of the death penalty, we envisage that the person could raise the non-refoulement obligation in the ICCPR to support a submission that extradition must be refused on the basis that it would be oppressive due to exceptional humanitarian circumstances.
11.31This leaves two significant points that the Extradition Bill must deal with:
(a) First, given the extensive overlap between the extradition and refugee proceedings, there is a need to ensure that the decisions made in each of the proceedings can be reconciled with each other. To achieve that end, greater information sharing is required between the various government agencies involved.
(b) Second, there is a need for guidance on how extradition and refugee proceedings should be sequenced, and the impact that one should have on the other. This is necessary because the same information/evidence is likely to be relevant to both and very similar international obligations are engaged, albeit in a different context.
11.32The remainder of this chapter outlines our recommendations for creating a workable solution to address these matters.
The “serious reasons to consider” standard must be applied on its own terms read in the Convention context. As Sedley LJ has observed, in a passage approved by the United Kingdom Supreme Court, art 1F: “… clearly sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says.”The United Kingdom Supreme Court case referred to in this passage is R (JS (Sri Lanka)) v Secretary of State for the Home Department  UKSC 15,  2 WLR 766 at  per Lord Brown JSC which in turn cites Al-Sirri v Secretary of State for the Home Department  EWCA Civ 222, (2009) Imm AR 624 at .