Chapter 11
Extradition and refugee proceedings

The extent of the overlap

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:

(a) that person is a refugee or an asylum seeker under the Refugee Convention and the Convention does not allow for expulsion;339
(b) there are substantial grounds for believing that the person would be in danger of being subjected to torture if deported or extradited from New Zealand;340 or
(c) there are substantial grounds for believing that the person would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported or extradited from New Zealand.341
11.11These “non-refoulement” obligations are owed under the Refugee Convention, the Convention against Torture and the ICCPR, respectively.342 Notably, whether these obligations are engaged in a particular case depends largely on whether the requesting country is also the country where the person is at risk.

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).

11.14Below we compare the decisions that are currently made under Part 5 of the Immigration Act to the equivalent decisions that we recommend should be made under our Extradition Bill.343 The comparison reveals that although there is a high degree of similarity between the decisions, there are also significant differences. Both the similarities and the differences have informed our policy recommendations.

Refugee status

11.15The Refugee Convention is incorporated as a Schedule to the Immigration Act. Under the Convention and the Act a two-part test applies in determining whether a person is a refugee.344 First, there is the “inclusion” test that examines the risk of persecution in the country of origin. Second, there is the “exclusion” test. This examines whether there is a reason to exclude the person from being recognised as a refugee even if their claim of persecution has merit. Finally, in extremely rare circumstances, consideration of whether a refugee should be deported despite their refugee status may be needed, because an exception to the principle of non-refoulement applies.

The inclusion test

11.16Under the Refugee Convention a person’s refugee claim has merit if the person has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” in his or her country of nationality or habitual residence, and he or she is unable or unwilling to avail himself or herself of the protection of that country.345 The table below compares this test to the discrimination ground for refusal in the Extradition Bill.

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.

The exclusion test

11.19For the purpose of this chapter, there are two notable exclusion grounds in the Refugee Convention.347 Both examine the likelihood that the person has committed serious criminal offending.
11.20First, a person must be excluded from refugee protection if there are “serious reasons for considering” that he or she “has committed a serious non-political crime outside the country of refuge prior to his or her admission to that country as a refugee”.348 The table below compares this test to the equivalent considerations under the Extradition Bill.
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.
11.21As indicated by the table considerable overlap exists between the decisions on whether the criteria for extradition are met and whether a person should be excluded from refugee protection under this ground. That is not a coincidence, as this exclusion ground was specifically included in the Refugee Convention to accommodate extradition.357

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.

11.23The second exclusion ground in the Refugee Convention, is that a person must not be recognised as a refugee if there are “serious reasons for considering” that he or she “has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments”.358
11.24Under our proposed Extradition Bill, an “extradition offence” includes any offence that is listed as an extradition offence in an applicable extradition treaty.359 Crimes against peace, war crimes and crimes against humanity are all identified in widely ratified multilateral treaties as “extradition offences”. They are also all excluded from the definition of “political offence” that we recommend in our Extradition Bill. Therefore, the only difference between this exclusion ground and the criteria for extradition is that described in the table above in relation to the phrases “serious reasons to consider” and “a case to answer”.

Exceptions to the principle of non-refoulementTop

11.25If a person is a refugee under the Refugee Convention, then the principle of non-refoulement is engaged, which prohibits the forcible removal of the refugee.360 However, the Convention recognises two very limited exceptions to the principle of non-refoulement. These allow for expulsion of a refugee if that person poses a serious danger to either the national security or the safety of the community in the host country.361 The Extradition Bill contains no equivalent to these exceptions. If the grounds for refusal apply, then the person must not be extradited regardless of any danger they may pose to New Zealand. This is one area where there is no correlation between the Refugee Convention and the Extradition Bill.

Protected person statusTop

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.

11.27In relation to torture, the test for protected person status under the Immigration Act and the equivalent ground for refusal in our Extradition Bill are almost identical. Both directly reflect the language used in the Convention against Torture.362
11.28If the ICCPR is engaged, then the test for protected person status is whether there are: “substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.”363 The concept of “cruel treatment” is defined in the Immigration Act as meaning “cruel, inhuman, or degrading punishment or treatment”. Notably, the Immigration Act excludes protection if the cruel treatment is due to “lawful sanctions”.364

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.

What is the significance?Top

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.

339Refugee Convention, above n 330, arts 33(1) and 33(2).
340Convention against Torture, above n 330, art 3.
341ICCPR, above n 330, arts 6–7.
342For a detailed discussion of the non-refoulement obligations and how they relate to extradition proceedings see Sibylle Kapferer The interface between Extradition and Asylum (United Nations High Commissioner for Refugees, Legal and Protection Policy Research Series PPLA/2003/05, November 2003).
343For a similar analysis of the non-refoulement obligations and how they are recognised in extradition and immigration proceedings from an international perspective see Kapferer, above n 342.
344Refugee Convention, above n 330, arts 1A and 1F, which apply by virtue of the Immigration Act, s 129(1).
345Refugee Convention, above n 330, art 1A(2).
346Extradition Bill, cl 20(c)(i)–(ii).
347Article 1F(c) of the Refugee Convention contains a third exclusion ground. This applies if: “there are serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations.” This ground would not capture any criminal offending that would not already be captured by the other two exceptions in article 1F. As such it has no additional relevance in the context of extradition.
348Refugee Convention, above n 330, art 1F(b).
349Extradition Bill, cls 34(4)(c).
350Extradition Bill, cls 34(4)(d).
351In Attorney-General v Tamil X [2010] NZSC 107 at [39] the Supreme Court stated:
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 [2010] UKSC 15, [2010] 2 WLR 766 at [39] per Lord Brown JSC which in turn cites Al-Sirri v Secretary of State for the Home Department [2009] EWCA Civ 222, (2009) Imm AR 624 at [33].
352Extradition Bill, cl 34(5)(a).
353Extradition Bill, cls 34(4)(b) and 44(4)(c).
354The leading New Zealand Court of Appeal decision defines “serious crime” as “likely to attract a severe penalty, at least in the nature of imprisonment for an appreciable period of years”; S v Refugee Status Appeals Authority [1998] 2 NZLR 291 (CA) at [6]. The Court goes on to state at [8] that all of the circumstances of the crime and the offender need to be looked at in assessing the likely penalty and that the penalty in New Zealand and (probably) the foreign country should be taken into account.
355Extradition Bill, cl 7.
356Extradition Bill, cl 20(b).
357See Kapferer, above n 342; and James C Hathaway and Michelle Foster The Law of Refugee Status (2nd ed, Cambridge University Press, Cambridge, 2014).
358Refugee Convention, above n 330, art 1F(a).
359Extradition Bill, cl 7.
360Immigration Act 2009, s 164; and Refugee Convention, above n 330, art 33(1).
361Immigration Act 2009, s 164; and Refugee Convention above n 330, art 33(2).
362A person qualifies for protected person status under the Immigration Act if: “there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand”: Immigration Act 2009, s 130(1). Under our proposed Extradition Bill, a request must be refused if: “there are substantial grounds for believing that the respondent would be in danger of being subjected to torture or to cruel, inhumane or degrading treatment or punishment in the requesting country”: Extradition Bill, cl 20(a).
363Immigration Act 2009, s 131(1).
364Immigration Act 2009, s 131(5)(a).