Contents

Chapter 11
Extradition and refugee proceedings

UNHCR guidance

11.43The UNHCR Guidance Note contains advice on the types of provisions that should be included in national legislation to ensure that extradition and refugee proceedings can be run alongside each other with an appropriate degree of cross-fertilisation. This advice translates into our three main areas of concern: impact, sequencing and information sharing.

Impact

11.44The Guidance Note provides that:

(a) Extradition legislation should expressly prohibit the extradition of a refugee or an asylum seeker if it would be inconsistent with the non-refoulement obligations under international refugee and human rights law.372
(b) The discrimination grounds for refusal should not be relied upon as the sole means of ensuring the non-refoulement of refugees or asylum seekers in refugee procedures.373
(c) A determination of refugee status made by appropriate immigration authorities under the Convention should be binding on the state organs or institutions which deal with the extradition request.374
(d) Extradition authorities may need to examine whether the exceptions to non-refoulement apply, thereby allowing for a refugee to be extradited. If this is the case, then the extradition procedure must offer appropriate procedural safeguards.375
(e) Extradition proceedings may trigger a re-examination of the requested person’s refugee status, resulting in cancellation or revocation proceedings.376
(f) A refugee claim should not be declared inadmissible solely because it has been submitted after an extradition request has been received by the appropriate authorities, or after the person sought has learned of the request.377

SequencingTop

11.45The issue of sequencing arises if an asylum seeker is the subject of an extradition request. The UNHCR offers the following guidance if the extradition request is from that person’s country of origin:378

In UNHCR’s view, it would generally be prudent to conduct extradition and asylum proceedings in parallel. This would be beneficial for reasons of efficiency and because the extradition process may result in the availability of information which has a bearing on the wanted person’s eligibility for refugee status and would therefore need to be taken into consideration by the asylum authorities. It may however be necessary to withhold a decision on the extradition request until the asylum determination has become final.

11.46If the extradition request is from a different country, then the UNHCR advises that, under certain circumstances, the asylum seeker may be extradited before his or her refugee claim has been finally determined. For this to be consistent with international refugee and human rights law, the requested state must:379

(i) establish that extradition to the Requesting State would not expose the asylum seeker to a risk of persecution, torture or other irreparable harm; and

(ii) in keeping with its primary responsibility for making certain that the asylum claim is determined in line with the criteria of the [Refugee] Convention and internationally accepted standards of fairness and efficiency, ensure that the asylum seeker has access to asylum determination procedures that comply with these standards.

Information sharingTop

11.47The entire Guidance Note is premised on the idea that information gathered for the purpose of extradition proceedings should be shared with immigration officials for the purpose of determining or re-visiting a refugee claim.380
11.48In terms of information sharing in the other direction, the UNHCR repeatedly stresses that, as a general rule, refugee and extradition officials in one state should refrain from revealing any information about a person’s refugee status or claim to the authorities of another state unless the individual concerned has given express consent to the sharing of that information. The Guidance Note observes that disclosure of such information without a legitimate basis for doing so, or of more information than is necessary for the purpose, may endanger the safety of the refugee or persons associated with them.381

Adopting the model in New ZealandTop

11.49Translating the UNHCR Guidance Note model into the New Zealand setting, we recommend that parallel refugee and extradition proceedings should be managed in accordance with the following process chart. The process chart illustrates a default position, but we consider that this model will need to have in-built flexibility to ensure that unusual circumstances can be accommodated:

Flowchart.

372United Nations High Commissioner for Refugees, above n 369, at [39].
373At [41].
374At [52].
375At [52].
376At [72].
377At [88].
378At [66].
379At [67].
380This is evident from the detailed discussion of how immigration officials should evaluate diplomatic assurances given in support of an extradition request, depending on whether the person is a recognised refugee or an asylum seeker and on whether the request is from the person’s country of origin or from a third country. See United Nations High Commissioner for Refugees, above n 369, at [24]–[37].
381At [57].