Refugee proceedings and extradition
10.3New Zealand is a party to the 1951 Convention Relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol. The Refugee Convention defines the term “refugee” as applying to any person who:
… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it.
10.4The Refugee Convention sets out the obligations of state parties and those of the refugees to their past states. In article 33, it codifies the fundamental principle of “non-refoulement”, which means that refugees cannot be forcibly returned to countries where they face persecution. Article 33(1) provides:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
10.5Under the Refugee Convention, the principle of non-refoulement also applies to persons who meet the definition criteria but have not had their refugee status formally recognised. The United Nations High Commissioner for Refugees has clarified that the principle applies not only to a refugee’s country of origin but to any other country where he or she has reason to fear persecution related to the grounds in the refugee definition or from where he or she could be sent to country where there is a risk of such persecution.
10.6The principle of non-refoulement, under both the Convention and customary international law, is applicable in the context of extradition. This is illustrated by the wording of article 33(1), which refers to the expulsion or return of a person “in any manner whatsoever”.
10.7There are exceptions to the principle of non-refoulement where article 33(2) applies. Article 33(2) states:
The benefit of [Article 33(1)] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
10.8Other international human rights agreements to which New Zealand is a party also establish non-refoulement obligations. These include, for example, the Universal Declaration of Human Rights, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the 1966 International Covenant on Civil and Political Rights.
10.9In a particular case, these non-refoulement obligations under international refugee and human rights law may be in opposition to the duty to extradite under a bilateral or multilateral extradition treaty. In such a situation, the international refugee and human rights obligations prevail over any obligation to extradite. This primacy derives from the nature of the refugee and human rights obligations and their place within the hierarchies in the international legal order.