Chapter 10
Refugee proceedings and extradition

Current law in New Zealand

10.10The Immigration Act 2009 implements New Zealand’s obligations under the Refugee Convention. Part 5 of the Act addresses refugee and protection status determinations, with the stated purpose of determining to whom New Zealand owes obligations under the Refugee Convention and Protocol.474
10.11The principle of non-refoulement is implemented by the Act providing that “[n]o person who is recognised as a refugee or a protected person in New Zealand, or who is a claimant, may be deported under this Act.”475 However, this provision specifically does not cover extradition, as extradition is excluded from the meaning of “deported” under the Act.476
10.12There is no prohibition in the Extradition Act 1999 on extraditing a refugee or asylum seeker. Indeed, there is no reference in the Act to refugee or asylum seeker, nor does the Act specify any special process where the subject of an extradition request is a refugee or asylum seeker. However, some aspects of the issues facing refugees or asylum seekers might be considered under the section 8 grounds for refusing surrender, in particular, refusing surrender in light of discrimination on the basis of race, ethnic origin, religion, nationality, sex, other status, or political opinions.477 These grounds are similar to those upon which a person may be found to be a refugee under the Refugee Convention, thus the principle of non-refoulement may apply and require that the person not be extradited.
10.13The only New Zealand case that has addressed an aspect of the interaction between the two regimes is Attorney-General v X, although this looked at the issue of disclosure of information rather than the main issue of the conflict in the obligations to refugees and the obligation to extradite.478 This was an appeal against the decision of the Refugee Status Appeals Authority on whether the Immigration Act permits the disclosure of confidential matters in the refugee proceedings to government officials considering a possible extradition request in relation to the same person. The Supreme Court agreed with the Authority (and overturned decisions of the High Court and Court of Appeal) to find that the Immigration Act did permit this disclosure in limited and controlled circumstances.479
474Immigration Act 2009, s 124.
475Immigration Act 2009, s 164.
476Immigration Act 2009, s 10.
477Extradition Act 1999, s 8(b)–(c). See discussion of these grounds for surrender in ch 8.
478Attorney-General v X [2008] NZSC 48, [2008] 2 NZLR 579.
479At [16], discussed below.