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.
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.
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; and for the purposes of the maintenance of the law, including for the prevention, investigation and detection of offences in New Zealand or elsewhere. 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. It is also worth noting that under the Immigration Act confidentiality may be expressly or impliedly waived by the claimant’s words or actions. 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.
- R29 Extradition and immigration legislation should facilitate information sharing between the Central Authority and the Ministry of Business, Innovation and Employment.
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.
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.
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.
- R30 Extradition and immigration legislation should contain enabling provisions that allow for an extradition proceeding to be suspended pending a determination in a refugee proceeding and vice versa.
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.
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. 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.
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.
- R31 Extradition legislation should prohibit the extradition of a refugee or an asylum seeker except in limited circumstances.