Contents

Chapter 11
Extradition and refugee proceedings

The required legislation

11.50To give effect to our recommendations, the Extradition Bill and the Immigration Act would need to contain either new or amended provisions relating to:

(a) confidentiality and information sharing;

(b) the Central Authority’s vetting decision;

(c) powers to temporarily suspend refugee and extradition proceedings;

(d) the evidential status of any RSB/IPT decision in extradition proceedings; and

(e) a prohibition on making an extradition order in breach of the principles of non-refoulement.

Confidentiality and information sharing

11.51Our expectation is that, in the future, the Central Authority and the Ministry of Business, Immigration and Employment (which includes the RSB) will consult regularly about incoming extradition requests. The Central Authority will need to know the immigration status of any person who is sought for extradition (in case there is a deportation issue, which is a separate matter) and whether the person has claimed, or later claims, refugee or protected person status under Part 5 of the Immigration Act. Conversely, the RSB needs to take into account any information that is disclosed in extradition proceedings that is relevant to a decision under Part 5 of the Immigration Act. This communication poses difficulties in relation to confidentiality.

11.52From the extradition side, the existence of an extradition request must be kept confidential until a Notice of Intention to Proceed is filed and the respondent is arrested. This ensures that the respondent is not alerted to the request and given the opportunity to flee. This general confidentiality requirement is reflected in clause 108 of the Bill. There is, however, an exception in clause 110 that would allow for earlier communication with the RSB.382
11.53At present, extradition officials hesitate to share this type of confidential information with the RSB. That is because the principles of natural justice that apply in refugee proceedings may require disclosure of that information to the claimant.383
11.54From the immigration side, confidentiality as to the fact that a person is a refugee, a protected person or a claimant must be maintained at all times unless sections 151 or 152 of the Immigration Act permit disclosure. Examples of permissible disclosures are: to a government agency for the purpose of gathering information to determine the claim or to investigate a matter;384 and for the purposes of the maintenance of the law, including for the prevention, investigation and detection of offences in New Zealand or elsewhere.385 These sections would allow for disclosure to the Central Authority for the purpose of assessing an extradition request.
11.55An important point to make is that the Central Authority would not, however, be able to pass the information on to the requesting country, particularly if that country is the feared agent of persecution. That would breach the Immigration Act. The provision in our proposed Extradition Bill explaining the Central Authority’s independence should help with this.386 It is also worth noting that under the Immigration Act confidentiality may be expressly or impliedly waived by the claimant’s words or actions.387 In any event, the Central Authority would need to work closely with the Ministry of Foreign Affairs and Trade to ensure its communications with a requesting country comply with any applicable confidentiality provisions under the Immigration Act. Further, the Court would need to ensure that if such evidence was presented in the extradition proceeding, any reference to that evidence in the judgment would need to be the subject of a suppression order. Again, the Extradition Bill contains a provision that would enable such an order to be made.388

Recommendation

The Central Authority’s vetting decisionTop

11.56To reflect our recommendations, clauses 25 and 38 of the Extradition Bill would need to be amended. These clauses govern the Central Authority’s decision as to whether to commence extradition proceedings. The amendments should make it plain that:

(a) in deciding whether to commence extradition proceedings, the Central Authority must consider whether the respondent is, or has been, the subject of proceedings under Part 5 of the Immigration Act and any result of those proceedings; and

(b) the Central Authority may nevertheless file a Notice of Intention to Proceed even if the respondent is the subject of an outstanding refugee or protected person claim or appeal under the Immigration Act, or has been recognised as a refugee or protected person.

Suspension of immigration and extradition proceedingsTop

11.57Many different factual scenarios could arise that involve both an extradition request and a claim for refugee or protected person status. In each different scenario, different considerations are at play. The extradition request may be from the respondent’s country of origin or a third country. The respondent may have an outstanding claim under the Immigration Act when the request arrives or the claim may already have been determined. All of these scenarios need to be accommodated in any sequencing policy.

11.58Accordingly, we suggest that the Extradition Bill and the Immigration Act should contain enabling procedural provisions rather than firm statutory rules governing sequencing. The appropriate order of the proceedings should be left to operational policies that we envisage would be developed through greater cooperation between extradition and immigration officials.

11.59The most important of these procedural provisions would be suspension provisions. These should empower the RSB, the IPT and the Court to temporarily suspend their respective decisions. The provisions should also explain the practical ramifications of that suspension. The Immigration Act already contains a suspension procedure that could be amended to apply.389

11.60For the other required procedural provisions, we note that clauses 31(3)(b) and 42(3)(b) of our proposed Bill already make it plain that the Court may direct that the criteria for extradition and the grounds for refusal should be considered at separate hearings. These clauses could, however, be amended to clarify that the Court should be alerted to the existence of any related refugee proceedings at the Issues Conference, and should take those proceedings into account for the purposes of case management. The provision could also clarify that this information should not be shared with the requesting country.

11.61Regarding immigration, it may be beneficial to amend the Immigration Act to clarify that where a person has been recognised as a refugee or protected person under that Act, but the Central Authority nevertheless commences extradition proceedings and the District Court finds that the criteria for extradition are met, then the immigration authorities should formally decide whether to re-open the claim for further consideration.390

11.62Further, the Immigration Act could clarify that if extradition proceedings are suspended pending determination of refugee proceedings then the refugee proceedings should be conducted under urgency. That is because the respondent will either be in custody or on bail until the extradition proceedings are resolved.

Recommendation

The evidential status of a RSB/IPT decisionTop

11.63As indicated above, we envisage that if refugee proceedings result in a final finding that the person is a refugee or a protected person, and the principle of non-refoulement applies, then the Central Authority should withdraw the Notice of Intention to Proceed. This seems more appropriate than the Court dismissing the extradition proceeding on its own motion, as this is the New Zealand Government reaching a conclusion about its international non-refoulement obligations.

11.64If the refugee proceeding results in a final determination that the person is not recognised as a refugee or protected person, then the Court and the Minister should be able to take into account those decisions to determine the grounds for refusal in the extradition proceeding. In relation to the Court, this may need to be the subject of a specific provision in the Extradition Bill, to avoid the decision being caught by an inadmissibility provision in the Evidence Act 2006.391

A prohibition on extraditionTop

11.65Recognition as a refugee or a protected person does not prohibit extradition outright. The Conventions all allow for extradition to third countries (where the risk to the person is not faced) and the Refugee Convention allows for the extradition of a refugee who is a danger to the public of New Zealand.392 Therefore, as we suggested in the Issues Paper, the Extradition Bill should contain a provision prohibiting the Court from making an extradition order:

(a) in respect of a respondent who is also a claimant under Part 5 of the Immigration Act or who has been finally recognised as a refugee or protected person under that Act;

(b) in relation to an extradition request from the country in which the person faces persecution; or

(c) where that recognition was made or re-confirmed following the Court’s finding that the criteria for extradition had been met.

11.66The prohibition should be subject to the following exceptions:

(a) a refugee or an asylum seeker may be extradited if one of the exceptions to non-refoulement in the Refugee Convention allows for the extradition of the person; and

(b) a refugee, an asylum seeker or a protected person may be extradited to any place other than the place in respect of which their refugee or protected person status was granted.393
11.67The second exception should be read alongside the clause in the Extradition Bill requiring an assurance from a requesting country that the respondent will not be re-extradited to a third country for offending that pre-dates the original extradition.394

Recommendation


382Under cl 110 of the Extradition Bill an agency may disclose confidential communications to another agency for the purpose of obtaining or providing relevant information about a person who is, or may be, the subject of an extradition request.
383Under s 226(2)(b) of the Immigration Act 2009, if an RSB decision is appealed then the RSB must send “any file relevant to the appeal or matter” to the IPT. Under s 230 the IPT must disclose all potentially prejudicial information in its possession that it intends to rely upon to the appellant, unless that material is classified.
384Immigration Act 2009, ss 151(2)(a), 151(5)(a) and 152.
385Immigration Act 2009, s 152(2)(b).
386Extradition Bill, cl 14(5)(a).
387Immigration Act 2009, s 151(6)
388Extradition Bill, cl 81, which incorporates subpart 3 of Part 5 of the Criminal Procedure Act 2011. This subpart deals with public access and restrictions on reporting.
389Section 135A of the Immigration Act 2009 states:
(1)This section applies to a claim if the processing of the claim is suspended in accordance with regulations made under section 400.
(2)For the duration of the suspension, a refugee and protection officer must not—
(a)determine the claim in accordance with sections 136 and 137; or
(b)make a decision on the claim in accordance with section 138.
Section 135A was added by the Immigration Amendment Act 2013, which related to mass arrivals and people smuggling. The goal was to allow for one-off regulations to be passed to suspend consideration of refugee claims by mass arrivals, seemingly to allow time to collect the relevant evidence.
390Sections 143–147 of the Immigration Act 2009 deal with cessation and cancellation. The obligation to consider re-opening the claim arises because the extradition proceedings will have alerted the immigration officials to the fact that the exclusion ground in the Refugee Convention may apply. If the exclusion ground does apply then immigration officials are obliged to formally exclude the person from refugee recognition in order to uphold the integrity of the Refugee Convention regime. See Hathaway and Foster, above n 360.
391Evidence Act 2006, s 50.
392Refugee Convention, above n 330, art 33(2).
393For a comparison see s 164 of the Immigration Act 2009, which explains the circumstances in which a refugee or protected person may be deported.
394Extradition Bill, cl 24.