New Zealand court finds risk of indefinite detention is a "compelling or extraordinary circumstance" in decision whether to extradite accused people smuggler to Australia
Maythem Kamil Radhi (Appellant) v The District Court of Manukau (The First Respondent) and The Commonwealth of Australia (The Second Respondent) [2017] NZSC 198
Summary
The Australian Federal Police sought the extradition of a New Zealand resident, Mr Radhi, alleging that he was involved in helping asylum seekers travel from Indonesia to Australia. The Commonwealth of Australia obtained an order from the District Court that Mr Radhi was eligible for surrender under section 45 of the Extradition Act 1999 (NZ) (the Act). On appeal, the Supreme Court ordered that Mr Radhi's case be referred to the Minister of Justice (the Minister) pursuant to section 48(4)(a)(ii) of the Act. The Court found that although Mr Radhi was eligible for surrender under section 45 of the Act, there was a "real risk" that Mr Radhi would be subjected to indefinite administrative detention once in Australia and that this risk constituted a compelling or extraordinary circumstance warranting referral to the Minister.
Facts
The Commonwealth of Australia alleged that in 2001 Mr Radhi was involved in helping asylum seekers sail from Indonesia to Australia and sought his extradition from New Zealand, where Mr Radhi lives with his wife and three children. Mr Radhi holds a New Zealand residence visa and is recognised as a refugee. Mr Radhi's residence visa does not permit him to travel and extradition would cause his visa to expire.
The Act provides for two separate extradition regimes. Requests for extradition generally proceed under Part 3 of the Act, which requires the Minister to make the final decision regarding whether a person is eligible for surrender and whether there exists grounds to either refuse to surrender or defer the surrender of that person. Part 4 of the Act provides a more streamlined process for extradition between Australia and New Zealand. In Part 4 proceedings, an order to surrender a person is made by the District Court. The Minister will only have a role in a Part 4 matter if the District Court refers it to the Minister pursuant to section 48(4)(a)(ii) of the Act.
Section 48(4)(a)(ii) (referred to as the "Referral Criteria") of the Act provides as follows:
(4) If -
(a) it appears to the court in any proceedings under section 45 that—
(i) …
(ii) because of compelling or extraordinary circumstances of the person, including, without limitation, those relating to the age or health of the person, it would be unjust or oppressive to surrender the person before the expiration of a particular period; but
(b) in every other respect the court is satisfied that the grounds for making a surrender order exist,—
the court may refer the case to the Minister in accordance with subsection (5).
The Commonwealth of Australia obtained an order under Part 4 of the Act by the District Court. Following the making of that order, Mr Radhi applied to the District Court seeking orders that his case be referred to the Minister; this application was unsuccessful, as was his application to the High Court for judicial review. His subsequent appeal to the Court of Appeal was also unsuccessful.
Mr Radhi then lodged an appeal to the Supreme Court of New Zealand, seeking for his matter to be referred to the Minister.
Decision
Majority opinion – the issue of "immigration limbo"
Justice William Young (with whom Justice Glazebrook and Justice O'Regan agreed) considered that the Court of Appeal, in determining that Mr Radhi's case did not meet the criteria for referral to the Minister, had not given consideration to Mr Radhi's position if he was unable to obtain a visa to return to New Zealand. His Honour considered that if Mr Radhi was found guilty, it was "practically inevitable" that he would be sentenced to a lengthy term of imprisonment ([7]). If Mr Radhi was sentenced to imprisonment for 12 months or more, he would become an excluded person under section 15 of the Immigration Act 2009 (NZ). The combined effect of Mr Radhi's inability to return to New Zealand and (following the completion of any term of imprisonment) the expiration of his Australian criminal justice visa, would mean that Mr Radhi would be in Australia unlawfully and be mandatorily detained without any entitlement to be released except as part of an arrangement to leave Australia or pursuant to a visa to re-enter New Zealand. His Honour considered that if Mr Radhi sought a visa to remain in Australia (for instance, a protection visa, a residence determination or a bridging visa) the process would likely take a number of years, during such time Mr Radhi would remain in detention in Australia.
His Honour considered that the risk that Mr Radhi would be subjected to indefinite administrative detention was not an "ordinary facet" of the extradition process ([38]) and that it constituted a compelling and extraordinary circumstance making it "unjust or oppressive to surrender him to Australia before the Minister has had the opportunity to consider the immigration limbo issue" ([57]). His Honour noted that the risk of "immigration limbo" could be "completely resolved" by the Minister granting Mr Radhi a visa that would enable him to return to New Zealand. Justice Glazebrook and Justice O'Regan agreed ([56]).
Minority opinion–narrow interpretation of section 48(4)(a)(ii)
The minority opinion, given by Justice Ellen France, considered that the purpose of Part 4 of the Act is to provide an efficient extradition process between Australia and New Zealand on the basis of the "particularly close and trusting relationship" between the two countries. Justice Ellen France highlighted the different powers provided to the Minister under section 30(3)(d) of the Act (which, relevantly, provides the Minister with discretion to determine that a person should not be surrendered if it would be "unjust or oppressive to surrender the person") and section 48(4)(a)(ii) of the Act (which provides that the court may refer a case to the Minister if it would be "unjust or oppressive to surrender the person before the expiration of a particular period" ([70]). In addition, Justice Ellen France referred (by way of footnote) to the Extradition Bill: Proposals for Amendment (15 September 1998) which, ostensibly, had provided for referral when surrender would be "incompatible with humanitarian considerations" but noted that, on advice from the Ministry of Justice, this broad ground had been deleted.
The minority justices preferred a literal and textual interpretation of the relevant provision. The minority, noting the limited judicial consideration of section 48(4)(a)(ii) of the Act, considered that it should be construed narrowly to deal with the existing immediate circumstances of a person (such as, age, ill-health or other personal circumstances).
The minority justices considered that limited evidence had been provided to the Supreme Court about what might happen if Mr Radhi was unable to return to New Zealand. In addition, they considered it was speculative to attempt to foresee what might happen at the trial. They also considered that it was possible that government policies and legislative regimes in New Zealand or Australia might change over time. On this basis, the minority justices concluded that Mr Radhi's circumstances did not meet the criteria for referral to the Minister.
Commentary
Given the limited judicial consideration of section 48(4)(a)(ii) of the Act, this decision provides guidance to courts when considering whether the risk of indefinite administrative detention in Australia constitutes a compelling or extraordinary circumstance warranting referral to the Minister. It is notable that Australia’s system of indefinite detention was seen by the Supreme Court of New Zealand – a close ally of Australia – to represent a sufficient enough risk to amount to a compelling or extraordinary circumstance warranting referral to the Minister.
The full decision can be found here.
Michelle Gaynor is a lawyer at Ashurst.