Chapter 10
Refugee proceedings and extradition
Disclosure of proceedings
10.29A further issue to be considered relates to disclosure of the fact and content of one type of proceedings for the purpose of the other. At this stage, we are unsure whether statutory reform is necessary, but we wish to raise the issues for consideration.
10.30There are relatively tight confidentiality provisions that apply in relation to refugee proceedings. The case of Attorney-General v X illustrates that it is not straightforward for the courts to determine whether information sharing from refugee proceedings to those investigating the possibility of extradition proceedings was possible. The Supreme Court overturned the decision of the High Court (which had been upheld by the Court of Appeal) that there was an absolute duty of confidence and found that the Immigration Act 1987 permits information about the application for refugee status to be disclosed to officials who require the information to consider the extradition.
10.31However, since Attorney-General v X, the Immigration Act 2009 has been brought into force. The provision relating to confidentiality as to the fact that a person is claiming or has been granted refugee status, and the particulars of the claim or status, has been altered from the provision that was relevant in the case. The new confidentiality section specifically allows disclosure of the fact of a claim, or particulars relating to a claim, “for the purposes of the maintenance of the law, including for the prevention, investigation, and detection of offences in New Zealand or elsewhere”. This would cover disclosure for the purpose of an extradition request.
10.32This reform has made the law clearer in this area. However, the UNHCR has cautioned against information about refugee status and pending refugee proceedings being made available to the authorities of another country, unless the person has given express consent to the sharing of this information. Disclosure of the refugee’s personal information or matters pertaining to the refugee claim without a legitimate basis for doing so would breach the refugee’s right to privacy and could endanger the safety of the refugee or persons associated with him or her. Consequently, in its dealings with the country requesting extradition, the requested country must balance the legitimate interest of the requesting country in prosecuting persons responsible for criminal acts, which may justify the disclosure of certain personal information, with the potential risks of sharing the information about the refugee. It may be that the requested country must refrain from transmitting personal information to the requesting country.
10.33There may also be a concern in relation to whether the tribunal considering a refugee application should be made aware of an extradition request or preliminary inquiries that may result in an extradition request. Arguably, the tribunal should also have access to information and evidence raised in the extradition request. If this type of disclosure is not provided, relevant information may not be heard. However, there is a concern that the person who is the subject of the extradition proceedings and refugee claim will be alerted to extradition proceedings before he or she has been arrested and may flee.
Question
Q42 Is further statutory reform needed to address any disclosure concerns regarding refugee proceedings and extradition proceedings?
