KIM v MINISTER OF JUSTICE OF NEW ZEALAND [2019] NZCA 209

KIM v MINISTER OF JUSTICE OF NEW ZEALAND [2019] NZCA 209 [11 June 2019]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF THEIDENTITY OF THE COUNTRIES THAT HAVE PROVIDED DETAILSABOUT THEIR DEALING WITH THE PEOPLE'S REPUBLIC OF CHINA INNEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA562/2017[2019] NZCA 209BETWEEN KYUNG YUP KIMAppellantAND MINISTER OF JUSTICE OFNEW ZEALANDFirst RespondentATTORNEY-GENERAL OFNEW ZEALANDSecond RespondentHearing: 17 July 2018Court: Cooper, Winkelmann and Williams JJCounsel: A J Ellis, G K Edgeler and BJR Keith for AppellantA F Todd and G M Taylor for RespondentsJudgment: 11 June 2019 at 9 amJUDGMENT OF THE COURTA The appeal is allowed.B The Minister of Justice's decision to surrender the appellant under s 30 ofthe Extradition Act 1999 is quashed.C The Minister of Justice must reconsider whether the appellant is to besurrendered in accordance with the matters identified at [278] of thisjudgment.D The respondents are jointly and severally liable to pay the appellant one setof costs for a standard appeal on a band B basis and usual disbursements.We certify for second counsel.E Costs in the High Court are to be dealt with by that Court having regard tothis judgment.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)Table of ContentsParaNo.INTRODUCTION [1]Some necessary context as to the extradition processThe Minister's role in the extradition process [10]The surrender decision and the relevance of international law andthe New Zealand Bill of Rights Act 1990[11]International law bearing upon exercise of s 30 discretion [15]New Zealand Bill of Rights Act and exercise of s 30 discretion [17]PRC's adoption of international covenants [22]The process to extradite Mr Kim [24]Briefing to the Minister [29]Minister's first decision [31]First judicial review [36]Minister's second decision [39]Second judicial review [42]Grounds of appeal [44]Standard of review [45]FIRST GROUND OF APPEALIs reliance upon diplomatic assurances consistent with New Zealand'sinternational obligations?[48]Submissions [48]First judicial review [52]Second judicial review [56]Analysis [57](a) Can New Zealand lawfully accept assurances to meet a risk oftorture?[57](b) Did the Minister err in failing to address a preliminary questionwhether assurances should be accepted in this case?[71]SECOND GROUND OF APPEALDid the Minister take into account a consideration irrelevant to hersurrender decision?SubmissionsAnalysis[80][80][81]THIRD GROUND OF APPEALDid Minister err in accepting assurances in relation to torture asadequate to protect Mr Kim on return to PRC?[84]Submissions [84]Evidence before the Minister in connection with use of torture andextra-judicial killings in the PRC[89]Minister's first decision [95]First judicial review [97]Briefing prior to the second decision [104]Second judicial review [114]Analysis [117](a) Did Minister take into account an irrelevant consideration, namelyrelative risk? [117](b) Did the Minister err in assessing the magnitude of the risk thatMr Kim would be tortured?(c) Did the Minister err in concluding that other factors reducedMr Kim's risk?[118][121](d) Was the Minister's conclusion that the assurances were adequate toprotect Mr Kim reasonable? [127]FOURTH GROUND OF APPEALDid the Minister err in relying upon diplomatic assurances as anadequate protection against the imposition of the death penalty?[140]Exposure to death penalty [140]Submissions [142]Minister's first decision [144]Judicial review decisions [147]Analysis [153]FIFTH GROUND OF APPEALDid the Minister fail to address the risk of extra-judicial killing?[156]Relevant background [161]Analysis [164]SIXTH GROUND OF APPEALDid the Minister apply an incorrect legal standard in determiningwhether Mr Kim's right to a fair trial would be upheld?[167]Legal framework [169]Analysis [176]SEVENTH GROUND OF APPEALDid the Minister err in concluding that there was no risk of departurefrom fair trial standards justifying refusal of surrender?[183]PRC's criminal justice system [188]Right to a hearing before an independent and public tribunal [192]Right to legal representation [222]Right not to be compelled to testify or confess guiltConclusion[244][257]EIGHTH GROUND OF APPEALDid the Minister err in making the decision to surrender Mr Kimnotwithstanding the absence of assurance addressing the risk ofdisproportionate punishment?[258]Relevant backgroundAnalysis[258][264]NINTH GROUND OF APPEALDid the Minister err in relying on advice from PRC officials as toMr Kim's access to mental health care in custody in the PRC?[269]SUMMARY OF CONCLUSIONS [271]RESULT [276]COSTS [279]Introduction[1] Mr Kim is a citizen of the Republic of Korea. He came to New Zealand withhis family in 1989, when he was 14 years old. He and his mother are permanentresidents of New Zealand, while his father and younger brother are New Zealandcitizens. Mr Kim is the father of two teenage children, for whom he is the principalcaregiver.[2] Chinese authorities allege that in 2009, Mr Kim killed a 20-year-old womanPei Yun Chen in Shanghai. Chinese police have both forensic and circumstantialevidence linking Mr Kim to the homicide. On 25 May 2011 New Zealand received arequest from the People's Republic of China (the PRC) seeking the extradition ofMr Kim on one count of intentional homicide. That request included an assurance thatif convicted, Mr Kim would not be sentenced to death.[3] In response to that request, Mr Kim was arrested in New Zealand and held incustody pending completion of extradition proceedings. He remained detained forover five years as the extradition proceedings made their way through the courts beforeeventually being released on electronic bail. The proceedings in connection with thisrequest for extradition have a lengthy and complex history, which we need only outlinein part.1 In the ensuing seven years since that initial arrest, Mr Kim has resistedsurrender arguing that he will be at significant risk in the PRC of torture, extra-judicialkilling or the imposition of the death penalty. He says his mental health is such thathe should not be surrendered, and that if he is surrendered, he will receive inadequatetreatment. He claims to have a defence to the charge but says he will not receive afair trial if returned to the PRC because of systemic and fundamental flaws in itscriminal justice system. Finally, Mr Kim argues that if convicted, he will be exposedto a disproportionately severe sentence.[4] The Minister of Justice is responsible under the Extradition Act 1999(the Extradition Act) for the decision to surrender Mr Kim. The Minister sought andreceived various assurances from the PRC to meet the concerns identified by Mr Kimand Ministry officials in connection with the risk of torture and Mr Kim's right toa fair trial. In late 2015, following receipt of those assurances, the then Minister ofJustice, the Hon Amy Adams, determined that Mr Kim was to be surrendered.She concluded that Mr Kim was at risk of torture if surrendered but that assurancesprovided by the PRC which allowed extensive monitoring of Mr Kim's treatmentadequately addressed this risk. In assessing the risk the assurances had to meet,the Minister proceeded on the basis that, as an ordinary criminal, Mr Kim was not athigh risk of torture, and that other aspects of his case further reduced the risk. She wassatisfied that recent reforms to criminal procedure, and assurances regarding access toa lawyer, met any risk that Mr Kim would not receive a fair trial on his return.[5] Mr Kim applied successfully to judicially review that decision beforeMallon J.2 The Judge identified reviewable errors and directed the Minister toreconsider her decision.31 CIV-2012-485-1918 (Habeas corpus); CRI-2013-404-000007 (Bail); CIV-2012-485-2506(Judicial review of eligibility for surrender); CIV-2014-404-3107 (Habeas corpus); CIV-2014-404-3174 (Habeas corpus); CIV-2015-485-1009 (Bail); CIV-2015-485-1036 (Judicial review ofMinister's decision); CIV-2016-485-843 (Judicial review of Minister's second decision).2 Kim v Minister of Justice [2016] NZHC 1490, [2016] 3 NZLR 425 [First judicial review].3 At [259]–[262].[6] The Minister, having reconsidered whether to surrender Mr Kim, againdecided that Mr Kim was to be surrendered. Mr Kim then applied to judicially reviewthe Minister's second surrender decision, but on this second occasion, Mallon Jrefused the application.4[7] Mr Kim now appeals that refusal of judicial review. He argues that in decliningthe second application for review, the Judge overlooked serious errors in the Minister'sdecision-making process and reasoning. Mr Kim's overall contention is that indeciding to surrender Mr Kim, the Minister failed to come to grips with the functioningof the PRC's legal system in which pre-trial torture and extra-judicial execution isendemic, and a fair trial is not possible. He argues the Minister underestimatedthe extent of the risks that Mr Kim faced, due to errors in her decision-making processand because she took a view of the facts not reasonably open to her. He contends thatthe Minister ought not to have relied upon diplomatic assurances because that practiceundermines the standing of international conventions and the rule of law in the PRC,and because the assurances in this case are inadequate to meet the concerns theypurport to address.[8] The issues on this judicial review are difficult. Mr Kim's case is the firstoccasion on which New Zealand has been asked to extradite to the PRC. Extraditionprocesses exist to ensure that those who commit crimes cannot escape consequencesby fleeing the jurisdiction — that there should be no safe havens for those who commitserious crimes. And it is alleged that Mr Kim has committed a very serious crime,a crime in respect of which credible evidence has been gathered by the PRC. But onthe other hand, the Minister of Justice is asked to return Mr Kim to a country that hasa criminal justice system very different to our own, that has not committed to relevantinternational instruments in the way or to the extent that New Zealand has — a countryin which, it is reliably reported, torture remains widespread (notwithstandingprocedural reforms in the last 40 years which have reduced the incidence of torture)and in which the criminal justice system is subject to political influence. New Zealandhas obligations under international law to refuse to return a person to a jurisdiction in4 Kim v Minister of Justice [2017] NZHC 2109, [2017] 3 NZLR 823 at [157] [Second judicialreview].which they will be at substantial risk of torture, or where they will not receive a fairtrial.[9] It is in this context that the courts are asked to review the Minister's exerciseof her decision-making power to surrender Mr Kim. On the view we have taken,the Minister must again re-visit the decision to surrender. We have summarised ourreasons at [275] below.Some necessary context as to the extradition processThe Minister's role in the extradition process[10] There is no extradition treaty in force between New Zealand and the PRC.However, Part 5 of the Extradition Act allows extradition on an ad hoc basis tocountries with which New Zealand does not have an extradition treaty. If theresponsible Minister (the Minister of Justice) decides that a request for extraditionshould be dealt with under the Extradition Act, then the process under Part 3 of thatAct applies.5 The Minister must decide whether the request should proceed tothe District Court for a decision on whether a person is eligible for surrender.6The District Court's consideration of eligibility for surrender includes determiningwhether a prima facie case exists against the person.7The surrender decision and the relevance of international law and the New ZealandBill of Rights Act 1990[11] After the eligibility determination, the matter is then referred back tothe Minister to make the final decision as to whether or not the person should besurrendered. The power to make that decision, the decision that is the subject of thisreview application, is contained in s 30 of the Extradition Act. It is a powerconstrained by mandatory and discretionary restrictions on surrender. Although setout in the Extradition Act, these restrictions derive from fundamental principles andrights contained within various international covenants ratified by New Zealand which5 Extradition Act 1999, s 60(6).6 Section 24.7 Section 24(2)(d).also underlie, to some extent, the rights and freedoms contained withinthe New Zealand Bill of Rights Act.[12] In the case of Mr Kim, the relevant mandatory ground for declining surrenderis that set out in s 30(2)(b), which provides that a Minister must not determine thata person is to be surrendered:if it appears to the Minister that there are substantial grounds for believing thatthe person would be in danger of being subjected to an act of torture inthe extradition country; This provision reflects New Zealand's commitments pursuant tothe Convention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment (the Convention against Torture).8[13] There are also discretionary restrictions on surrender under which the Ministermay decide not to surrender. The following are relevant to Mr Kim's case:(a) section 30(3)(a): if the person may or has been sentenced to death;(b) section 30(3)(d): if it appears to the Minister that there are compellingor extraordinary circumstances relating to the person, including theirhealth, that would make it unjust or oppressive to surrender the person;and(c) section 30(3)(e): if for any other reason the Minister considers thatthe person should not be surrendered.[14] The Extradition Act does not expressly provide for consideration of whetherthe individual will receive a fair trial. But it is common ground, on the facts of thiscase, that s 30(3)(e) requires the Minister to address the issue of fair trial rights inthe PRC when making the surrender decision. That is because that section andthe powers conferred under it must be interpreted, to the extent its wording permits,in a manner consistent with New Zealand's obligations under international law.8 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987).Those obligations include the fundamental principles of criminal justice arising underthe International Covenant on Civil and Political Rights (ICCPR)9 and the Conventionagainst Torture.International law bearing upon exercise of s 30 discretion[15] New Zealand ratified the ICCPR in 1978. In 1989, New Zealand ratifiedthe First Optional Protocol under that Convention, which established a complaintmechanism for individuals.10 And in 1990, New Zealand ratified the Second OptionalProtocol, which concerned the abolition of the death penalty.11[16] New Zealand ratified the Convention against Torture in 1989 and the OptionalProtocol, which provides mechanisms for scrutiny of nations' compliance with thatconvention, in 2007.12New Zealand Bill of Rights Act and exercise of s 30 discretion[17] Section 30 of the Extradition Act is also to be given a meaning, to the extent itcan be, consistent with the rights and freedoms contained in the New Zealand Bill ofRights Act.13 It is clear that the latter Act applies to actions taken by the Executiveand the courts in New Zealand.14 What is less clear is the effect of the New ZealandBill of Rights Act on the Minister's assessment of whether surrender should be orderedin light of the situation Mr Kim would be returned to in the PRC.[18] In Zaoui v Attorney General (No 2) Mr Zaoui had argued that he would besubject to the risk of torture and the arbitrary deprivation of life if returned to Algeria9 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976) [ICCPR].10 Optional Protocol to the International Covenant on Civil and Political Rights 999 UNTS 171(opened for signature 16 December 1966, entered into force 23 March 1976).11 Second Optional Protocol to the International Covenant on Civil and Political Rights 999 UNTS414 (opened for signature 15 December 1989, entered into force 11 July 1991).12 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment 2375 UNTS 237 (opened for signature 18 December 2002, entered intoforce 22 June 2006).13 New Zealand Bill of Rights Act 1990, s 6. See also Zaoui v Attorney General (No 2) [2005] NZSC38, [2006] 1 NZLR 289 at [90]–[91].14 New Zealand Bill of Rights Act, s 3.and that would be a breach of his rights under the New Zealand Bill of Rights Act.15Section 9 of the New Zealand Bill of Rights Act provides:9 Right not to be subjected to torture or cruel treatmentEveryone has the right not to be subjected to torture or to cruel,degrading, or disproportionately severe treatment of punishment.[19] The Supreme Court explained the principle against non-refoulement and itsrelationship to the s 9 right, and to the rights contained in the ICCPR as follows:16[79] Those provisions [ss 8 and 9 New Zealand Bill of Rights Act] do notexpressly apply to actions taken outside New Zealand by other governmentsin breach of the rights stated in the Bill of Rights. That is also the case witharts 6.1 and 7 of the ICCPR. But those and comparable provisions have longbeen understood as applying to actions by a state party — here New Zealand— if that state proposes to take action, say by way of deportation orextradition, where substantial grounds have been shown for believing that theperson as a consequence faces a real risk of being subjected to torture or thearbitrary taking of life. The focus is not on the responsibility of the state towhich the person may be sent. Rather it is on the obligation of the stateconsidering whether to remove the person to respect the substantive rights inissue.[20] This approach does not mean that, before deciding whether to allow surrender,the Minister must ensure that the requesting state complies with the New Zealand Billof Rights Act; it cannot be given extraterritorial effect so as to govern how criminalproceedings in the requesting state are conducted. For example, a decision tosurrender would not be unreasonable because the requesting state does not affordthe individual a jury trial, even though if tried in New Zealand the person would havea right to a jury trial under s 24(e). As Ms Todd submits for the respondents,the extradition context requires some latitude and respect for difference in criminaljustice processes.17 But there must be limits to that, such that the Minister shouldrefuse surrender where surrender would violate the fundamental principles of justicewhich underlie the rights relating to criminal procedure, treatment and detentioncontained within the New Zealand Bill of Rights Act and international treaties.1815 Zaoui v Attorney General (No 2), above n 13.16 Zaoui v Attorney General (No 2), above n 13 (footnotes omitted).17 Canada (Justice) v Fischbacher 2009 SCC 49, [2009] 3 SCR 170 at [51]; and Kindler v Canada(Minister of Justice) [1991] 2 SCR 779 at 844.18 See United States v Burns 2001 SCC 7, [2001] 1 SCR 283 for the approach of the CanadianSupreme Court in the context of the significance of the Charter.[21] In this case, there are no difficult issues as to the application ofthe New Zealand Bill of Rights Act to the decision to surrender, because the fair trialrights contained in that Act largely mirror the provisions of the ICCPR.PRC's adoption of international covenants[22] The PRC signed the Convention against Torture in 1986, ratifying it in 1988.But it has made a reservation to arts 20 and paragraph one of art 30 of that convention.Nor has the PRC signed the Optional Protocol. Together these articles provide forinvestigation by the United Nations Committee against Torture if it receives awell-founded indication that torture is being systematically practised in the territoryof a state party. It also provides for the receipt of individual complaints made by anyindividual who alleges he or she has been subjected to torture. The PRC's position isthat the "Chinese government believes that the promotion and protection of humanrights is mainly realized through the efforts of countries themselves, not throughthe means of visits to state parties."19[23] The PRC signed the ICCPR in 1998 but is yet to ratify it. It has not signed orratified the ICCPR's First Optional Protocol. Nor has it signed and ratified the SecondOptional Protocol on the abolition of the death penalty.The process to extradite Mr Kim[24] On 15 August 2011, the then Minister of Justice, the Hon Simon Power,decided the PRC's request to extradite Mr Kim should be dealt with underthe Extradition Act. On 17 August 2011, the Minister notified the District Court thathe had received the request for surrender and the matter was set down for an eligibilityhearing.[25] On 29 November 2013, the District Court decided that Mr Kim was eligiblefor surrender, pursuant to s 24 of the Extradition Act.20 However, the Minister thendelayed the decision under s 30 whether to surrender Mr Kim until challenges Mr Kim19 Report of the Working Group on the Universal Periodic Review UN Doc A/HRC/25/5/Add.1(27 February 2014) at [186.16].20 Re Kim DC Auckland CRI-2011-004-11056, 29 November 2013.brought to the eligibility decision were exhausted. It was for that reason that an initialrequest for assurances (containing a draft script of proposed assurances) was notconveyed by the Ministry of Foreign Affairs and Trade (MFAT) to the PRC until 2014.These assurances had been drafted by the Ministry of Justice, in association withMFAT, and with the assistance of Professor Fu Hualing, a Professor of Law atthe University of Hong Kong. They were then revised over the course of a series ofmeetings with the PRC's representatives. Finally, by 3 July 2015 the stage of seekingdiplomatic assurances was completed and the assurances issued by the PRC.[26] At the time the initial extradition request was made, the PRC providedan assurance that "according to The Supreme People's Court's decision, Kim KyungYup will not be sentenced to death after his extradition back to China". The additionaldiplomatic assurances obtained through the process we have outlined can besummarised as follows:(a) As a state party to the Convention against Torture, the PRC will complywith that convention.(b) Mr Kim will be brought to trial without undue delay.(c) During all periods of his detention Mr Kim will be able to contactNew Zealand diplomatic or consular representatives at all reasonabletimes.(d) Those New Zealand representatives may visit Mr Kim and beaccompanied by one or more of an interpreter, a medical professionalor a legal expert licensed to practise law in the PRC. Visits are to beevery 15 days although additional visits can be arranged. The visitswill include the opportunity to:(i) interview Mr Kim in private and without monitoring;(ii) to have Mr Kim, if he consents, be examined by medicalprofessionals chosen by New Zealand diplomatic or consularofficials (although the PRC would have the right to havea medical professional of their choice present); and(iii) to access parts of the detention facility to which Mr Kim hasaccess including his living quarters.(e) For the purpose of getting information on Mr Kim's treatment,New Zealand representatives may meet in private with others includingprison staff, procuratorate staff, medical professionals and, withMr Kim's consent, his lawyer. If information is provided in good faith,there will be no reprisal against those who provide such information.(f) Mr Kim will be entitled to retain a lawyer of his choosing and to receivelegal aid in accordance with Chinese law.(g) On request, New Zealand representatives are to be provided with fulland unedited recordings of pre-trial interrogations of Mr Kim and alsoof court proceedings relating to him if the hearing is closed.If the hearing is open, those representatives may attend. If the hearingis closed, pursuant to Chinese law, those periods shall be as short aspossible.(h) Recordings of interrogations and court proceedings are to be used forthe sole purpose of obtaining information on the treatment of Mr Kimand will not be otherwise disclosed to third parties.(i) The PRC will comply with applicable international legal obligationsand domestic requirements regarding fair trial.(j) If there is any issue regarding the assurances, the PRC andNew Zealand will immediately consult to resolve the issue.[27] It is common ground that the diplomatic assurances provided in this case donot impose legally enforceable obligations upon the PRC. In the first judicial reviewproceeding, the respondents filed evidence from Mr John Adank, a public servantemployed by MFAT, concerning the use of diplomatic assurances in dealings betweenstates.21 His evidence was that in the course of diplomatic relations, states may agreeto undertake, or to refrain from undertaking, certain actions. A range of instrumentsare available to record and formalise these agreements, from bilateral and multilateraltreaties to arrangements, memoranda of understanding, Exchange of Notes and otherforms of agreement. Diplomatic assurances are often used by states in the context ofindividual criminal cases, including extradition. They are not, in themselves, bindingunder international law unless the undertakings are set out in treaties.The undertakings may also acquire legal force if they engage in some way withpre-existing treaty obligations, but that is not the case here.[28] Mr Adank says that it is a fundamental principle that states conduct theirdealings with each other in good faith. Diplomatic assurances provided in good faithamount to moral and political obligations on the state providing them, so that a failureto observe those assurances gives rise to serious reputational risk. It can affect boththe bilateral relationship and the country's standing in the international community.Briefing to the Minister[29] Once the additional assurances were issued by the PRC, Minister Adams wasprovided with extensive briefing materials to assist her in making her surrenderdecision. This included reports from United Nations Committees and variousinternational non-governmental organisations as to the criminal justice system inthe PRC, the prevalence of torture within that system, prison conditions, relevantNew Zealand legislation and international conventions, as well as Chinese legislationand relevant decisions in the extradition context from other jurisdictions.[30] The Minister received and considered submissions from Mr Ellis on behalf ofMr Kim, as well as material Mr Ellis provided to support Mr Kim's argument that heshould not be extradited.21 First judicial review, above n 2.Minister's first decision[31] Mr Kim was notified of the Minister's first decision, through his counsel, on30 November 2015. In the decision letter the Minister provided reasons for herdecision.[32] In relation to the risk of torture, the Minister directed herself that she:must refuse to order surrender if it appears to me that there are substantialgrounds to believe that [Mr Kim] would be in danger of being subjected to an actof torture in the PRC (s 30(2)(b)).She was satisfied that there were not substantial grounds to believe that Mr Kim wouldbe in danger of an act of torture in the PRC. She said that there was evidence thattorture was still a significant problem in the PRC and accepted that Mr Kim was atrisk of torture. But she considered that he was not at high-risk of torture and otherfactors reduced his risk further. Moreover, the PRC had provided detailed and specificassurances which included provision for monitoring. She was satisfied thatmonitoring would provide a significant deterrent to any act of torture. She noted thatNew Zealand and other jurisdictions have experience whereby assurances given bythe PRC have been honoured.[33] As to fair trial rights, the Minister asked herself whether she was satisfied,on the available information (including assurances provided by the PRC) that Mr Kimwould receive a trial in the PRC that to a reasonable extent accords withthe fundamental principles of criminal justice reflected in art 14 of the ICCPR.She expressed herself so satisfied.[34] The Minister was not satisfied that Mr Kim's mental health issues weresufficiently compelling or extraordinary to refuse surrender, and there was nosuggestion he was not well enough to travel.[35] Having determined that Mr Kim should be surrendered in accordance withs 30, the Minister noted that the next step was to issue a surrender order pursuant tos 31.First judicial review[36] Mr Kim brought judicial review proceedings in respect of the first decision,advancing multiple grounds of review.22 He provided an affidavit fromMr Clive Ansley, a Canadian legal academic who has lectured in Chinese history andlaw, and has frequently provided expert evidence as to the operation of the PRC's legalsystem. Mr Ansley has direct experience of the PRC's criminal justice system, even ifit is a little dated, having worked as a foreign lawyer in the PRC between 1984 and2003, handling litigation before the courts. The Judge admitted Mr Ansley's evidenceon the basis that it might be relevant to the extent it provided information the Ministerdid not have and which was material in the sense that it may have led to a differentdecision.23[37] The Judge was satisfied that absent the assurances there was a substantial riskthat Mr Kim would be tortured, and there were concerns regarding his ability to receivea fair trial.24 The efficacy and enforceability of the assurances were therefore critical.25The Judge found a number of errors in the Minister's consideration of the adequacyof the assurances, and directed the Minister to reconsider the surrender order in lightof three matters:(a) The Minister had not explicitly considered the effectiveness ofassurances obtained from the PRC given New Zealand's apparentinability under those assurances to disclose information aboutMr Kim's treatment to third parties.26 She noted that any issues thatarose were left to be determined on a bilateral diplomatic basis.She said "[i]n view of New Zealand's limited experience withassurances from the PRC and the limited information from othercountries about their experience with the PRC honouring assurances,22 First judicial review, above n 2.23 At [14]; referring to Woolf and others De Smith's Judicial Review (7th ed, Sweet & Maxwell,London, 2013) at [11-053].24 At [260].25 At [173].26 At [259].this may be inadequate to protect Mr Kim's rights."27 The Judge saidthis issue needed explicit consideration by the Minister.(b) The Minister had concluded that Mr Kim will receive a trial that toa reasonable extent complies with the rights in art 14 of the ICCPR.28But in reaching that conclusion the Minister had not explicitlyaddressed whether the assurances sufficiently protected Mr Kim fromill-treatment and his right to silence during pre-trial interrogations,when they do not provide for Mr Kim to have the right to a lawyerpresent for all pre-trial interrogations.29 While the assurances providedthat all interrogations would need to be recorded and provided onrequest to New Zealand representatives, the Minister had not addressedwhether that was an adequate substitute for the presence of a lawyer inlight of the authority exerted by public security officers (said recentlyby the UN Committee against Torture to wield excessive power and bewithout effective control) and when the presence of a lawyer whenan accused is questioned by the police is a well-established right in thiscountry. The Judge also noted the issue of whether Mr Kim would becompelled to answer questions in view of the PRC's apparentlyconflicting criminal procedure laws, a risk that had not beenspecifically addressed in the assurances.30(c) The extent to which monitoring arrangements would be proactivelyundertaken.31 The Judge said that on the information provided tothe Court it was unclear what visits would actually occur (as opposedto what access is permitted).[38] Mr Kim's application to review the order to surrender was accordingly granted.The Judge directed the Minister to reconsider her decision in light of the issues raisedin the judgment and the particular matters set out above.3227 At [259].28 At [260].29 At [260].30 At [260].31 At [261].32 At [262].Minister's second decision[39] On 19 September 2016, the Minister again decided that Mr Kim should besurrendered to the PRC. In the reasons provided she said she was satisfied, based onadditional information she had received from MFAT, that:(a) Mr Kim's treatment would be proactively monitored;(b) New Zealand would be able to disclose information about Mr Kim'streatment to third parties in appropriate circumstances, andthe effectiveness of those assurances would not be undermined;(c) Mr Kim's rights would be sufficiently protected despite the absence ofa lawyer during pre-trial interrogations; and(d) Mr Kim could refuse to answer questions during pre-trialinterrogations.[40] She concluded that none of the mandatory restrictions on surrender applied andsurrender was appropriate having regard to the relevant discretionary grounds.[41] She advised Mr Ellis of her reasons on 3 October 2016. On that same day shesent a letter to the Minister of Foreign Affairs and Trade asking him to convey to hisofficials that, in addition to any visits sought by Mr Kim, MFAT should plan to visithim at least once every 48 hours during the investigation phase and no less than every15 days from then until the completion of trial.Second judicial review[42] On the second judicial review application, Mr Kim challenged the Minister'sreliance upon diplomatic assurances given the PRC's poor human rights record.33He argued there should be a blanket ban on the use and acceptance of such assurancesuntil the PRC brings itself into compliance with those international standards that33 Second judicial review, above n 4, at [5].New Zealand has obligated itself to uphold.34 He also challenged the effectivenessof the assurances received in terms of Mr Kim's fair trial rights, and the risks of torture,exposure to the death penalty or extra judicial killing and Mr Kim's mental health.[43] The Judge was satisfied that the additional information received bythe Minister, and the Minister's reconsideration in light of that information, adequatelyaddressed the deficiencies in decision-making identified in the first judicial review.35She concluded it was reasonably open to the Minister to determine that Mr Kim'srights would be protected by the assurances if he was surrendered to the PRC and todecide to surrender him accordingly.36Grounds of appeal[44] Mr Ellis, for Mr Kim, argues that on second judicial review the Judge erred in:(a) holding that the Minister could lawfully and reasonably rely upondiplomatic assurances as a means of reducing the risk that Mr Kimwould be tortured;(b) rejecting arguments that the Minister took into account an irrelevantconsideration, namely helping the PRC establish credibility inthe international community;(c) finding the Minister's decision that the assurances were an adequateprotection against the risk of torture was reasonably open to her eventhough the Minister:(i) took into account an irrelevant consideration, namely Mr Kim'srisk of torture relative to other detainees in the PRC;(ii) erred in finding that Mr Kim was not a member of a high-riskgroup;34 At [23].35 At [154]–[157].36 At [155].(iii) repeated errors she had made in her assessment of that risk,errors which had been identified by the Judge in the first judicialreview decision, but overlooked by her in the second; and(iv) failed to address how the particular assurances could meetthe risk of torture given the way in which torture is typicallypracticed in the PRC;(d) finding that the Minister could reasonably rely upon assurances as anadequate protection against the risk of the imposition and carrying outof the death penalty;(e) failing to address the absence of any assurance addressing the risk ofextra-judicial killing;(f) upholding the Minister's application of an incorrect legal standard inweighing Mr Kim' s right to a fair trial in the extradition context;(g) upholding the Minister's decision that Mr Kim's surrender to the PRCwould not result in a flagrant breach of his right to a fair trial althoughthe Minister:(i) reached views as to the PRC criminal justice system which wereinconsistent with evidence before her; and(ii) relied on vague and unenforceable assurances she had receivedwhich did not address the structural absence of fair trialprotections;(h) identifying the risk that Mr Kim would not receive credit for time spentin custody in New Zealand, yet nevertheless upholding the decision tosurrender; and(i) upholding the Minister's reliance upon advice from PRC officials as toMr Kim's access to mental health care whilst in custody in the PRC,given that such access is not the subject of any assurance and thatprovision for mentally ill prisoners is strongly criticised in materialavailable to the Minister, and subsequent material before the Court.Standard of review[45] The standard of review is not in issue on this appeal. It is common groundbetween the parties that the Judge applied the appropriate standard of review in boththe first and second judicial review. In the first judicial review decision, the Judgeheld that, due to the fundamental human rights at stake, the appropriate standard ofjudicial review of the Minister's decision is one of heightened scrutiny.37 Whilst notamounting to a merits view, it requires the Court to: 38ensure the decision has been reached on sufficient evidence and has been fullyjustified, while recognising that Parliament has entrusted the Minister(not the courts) to undertake adequate enquiries and to exercise her judgment onwhether surrender should be ordered.This approach reflects that it is not for the court to decide whether the relevant riskexists,39 but rather whether it was reasonable for the Minister to conclude that it doesnot.40 In doing so, the court is entitled to subject the Minister's reasoning process toanxious or heightened scrutiny.[46] In the second judicial review decision, the Judge accepted that heightenedscrutiny required consideration of whether materially relevant information (includinginformation the Minister knew or should have known existed) had been considered bythe Minister.41 Again, it is common ground that the Judge's approach on this aspectof review was correct.[47] We are satisfied that the standard of review applied by the Judge wasappropriate. It is argued for Mr Kim that if he is surrendered to the PRC he will be37 First judicial review, above n 2, at [7].38 At [7] (footnotes omitted).39 In this case, the risks Mr Kim has asked the Minister to address are the risks of torture,extra-judicial killing, of failure to provide a fair trial or to adequately treat Mr Kim's mental healthissues, and finally, the risk of disproportionately severe punishment.40 India v Badesha 2017 SCC 44, [2017] 2 SCR 127 at [62].41 Second judicial review, above 4, at [17].denied the most fundamental of human rights; the right to be free of torture andthe right to a fair trial. All parties have proceeded on the basis that there are goodgrounds for concern as to the observance and protection of human rights in the PRC.It is therefore right that when the Minister makes a decision in connection withMr Kim's extradition the Minister is guided by a correct understanding of the law, andmakes decisions properly grounded in evidence and only after consideration of allrelevant evidence.FIRST GROUND OF APPEALIs reliance upon diplomatic assurances consistent with New Zealand'sinternational obligations?Submissions[48] We address at this point Mr Ellis' submission that as a matter of internationallaw, assurances may not be accepted to meet a risk that a person will be tortured shouldthey be extradited to the requesting state. We address issues raised for Mr Kim as tothe effectiveness and enforceability of the assurances provided as they arise inconnection with the other grounds of appeal.[49] Mr Ellis argues that the Minister could not lawfully rely upon diplomaticassurances as a means of reducing risks of breach of the appellant's fundamentalrights. He argues that accepting unenforceable private assurances, in preference torelying on the Convention against Torture and the ICCPR, both of which prohibittorture, undermines those international instruments, and is therefore inconsistent withNew Zealand's obligations under international law. Such assurances are not legallybinding upon a requesting state, occurring outside the context of a bindinginternational extradition agreement, and the binding effect of international law.Accepting such assurances associates New Zealand with the proposition that the PRCcan avoid the consequences of its non-compliance with the Convention against Tortureand the ICCPR by entering into bilateral arrangements. It therefore ignores, andindirectly supports, systematic torture of detainees regularly.[50] Mr Ellis advances a further argument. He says that given the PRC's overallhuman rights record, the Minister was obliged to ask herself whether she should acceptassurances from the PRC. This is a question arising before consideration ofthe adequacy of assurances. At least notionally, it is a question which arises beforeassurances are sought. Mr Ellis argues that the Minister did not address herself to thisquestion, and therefore erred in law.[51] These are largely the same arguments made by Mr Ellis in the first and secondjudicial review. Mr Ellis contends that the Judge erred in rejecting them.The respondents support the reasons provided by the Judge for rejecting thesearguments in the High Court.First judicial review[52] In the first judicial review, the Judge noted widespread concern withinthe international community about the practice of obtaining assurances.42Nevertheless, she was satisfied that whether New Zealand's commitment tothe international obligations is better served by seeking assurances and ensuring theyare adhered to, or by not seeking bilateral assurances at all and declining an extraditionuntil the PRC's commitment to the prohibition on torture is demonstrated, is a politicalquestion.43[53] She said it was not apparent that the Minister considered whether she shoulddecline to rely on assurances in principle (in light of the widespread criticism of theiruse) when deciding to make a surrender order.44 The decision to seek assurances hadalready been made by the time she came to make her first and her second decision(it was made on 11 November 2014). The briefings in respect of those earlierdecisions to seek assurances were not before the Judge and they are not before us.[54] In any case, the Judge was satisfied the Minister was not required to respondto that point.45 It was a decision for the Minister, not the court, whether to seek andrely on diplomatic assurances.46 The Extradition Act permits the use of assurancesand does not exclude them in respect of torture. No legal error arose because42 First judicial review, above n 2, at [145].43 At [160].44 At [159].45 At [160].46 At [160].the Minister decided to seek assurances. The Judge said the court's role on the judicialreview was "to determine whether the Minister's decision to order surrender waswithin her power under the [Extradition] Act in light of the assurances that wereobtained".47[55] As to Mr Ellis' second argument, the Judge accepted that although the decisionto seek assurances was in principle a political one, there may be some circumstanceswhere the general situation in a country is such that no reliance can be placed onassurances. The Judge noted that the Minister was briefed on that issue, and that sheaccepted her official's advice. Her decision as advised to Mr Kim stated that she hadconsidered the general situation regarding torture in the PRC, and against thatbackground had considered Mr Kim's particular circumstances, including the natureand quality of the assurances.48Second judicial review[56] Mr Ellis advanced the same arguments in support of the second application forjudicial review. The Judge reached the same conclusion.49Analysis(a) Can New Zealand lawfully accept assurances to meet a risk of torture?[57] There is nothing in the Extradition Act or in New Zealand's international lawcommitments, that precludes reliance upon assurances where the risk to be addressedis that of torture.Statutory framework[58] The Extradition Act clearly contemplates that when considering a request forextradition, the Minister may seek undertakings. Section 30(3)(a) contemplates thatassurances may be sought or provided if the death penalty is a possibility.Section 30(6) provides:47 At [160].48 At [170].49 Second judicial review, above n 4, at [40].For the purposes of determining under this section whether the person is to besurrendered, the Minister may seek any undertakings from the extraditioncountry that the Minister thinks fit.[59] These statutory provisions are not a complete answer to Mr Ellis' point, as theyare to be interpreted, to the extent consistent with their language, with New Zealand'sobligations under international law. While there is no prohibition on return containedin the ICCPR, we consider that it may be a breach of a state party's obligations underthat convention to return a party to a requesting state knowing that such return exposesthem to a real risk of a breach of a right under the ICCPR.50International obligations[60] Relevant also is art 3 of the Convention against Torture, which provides:1. No State Party shall expel, return ("refouler") or extradite a person toanother State where there are substantial grounds for believing that hewould be in danger of being subjected to torture.[61] The art 3 obligation is absolute in the sense that it is not possible to weighthe risk of ill-treatment against the reasons put forward for the expulsion.51Nevertheless art 3 does not purport to prohibit extradition to a state where torture isknown to occur. Rather, it focuses upon the nature of the risk that the individual willbe tortured. Nor does it preclude taking diplomatic assurances into account whenassessing that risk. The issue in assessing risk, as we shortly address,is the effectiveness of those assurances.Human rights commentary[62] As the Judge noted, there is widespread concern in the international communityabout the practice of obtaining assurances. The basis for this view is well set out inthe following comment from a Joint Report of the Human Rights Watch, AmnestyInternational and the International Commission of Jurists:5250 See discussion above at [17]–[21].51 Saadi v Italy ECHR 37201/06, 28 February 2008 at [125]–[126] and [138].52 Amnesty International, Human Rights Watch and International Commission of Jurists"Reject rather than regulate: Call on Council of Europe member States not to establish minimumstandards for use of diplomatic assurances in transfers to risk of torture and other ill-treatment"(2 December 2005) (footnotes omitted); cited in Lai v Canada (Minister of Citizenship andImmigration) 2007 FC 361, [2008] 2 FCR 3 at [133].As noted by the Council of Europe's Commissioner for Human Rights"the weakness inherent in the practice of diplomatic assurances lies inthe fact that where there is a need for such assurances, there is clearlyan acknowledged risk of torture and ill-treatment". The value of signingan "understanding" or accepting an "assurance" from a state that does notrespect even legally-binding multi-lateral agreements prohibiting torture andother ill-treatment is necessarily cheap. Promises to take measures detailed indiplomatic assurances are mere repetitions — indeed, pale echoes — of treatyand other international obligations which receiving states have alreadypromised but failed to respect in the past.The reliance on such non-binding agreements to enforce legally bindingobligations may, in fact, undercut the credibility and integrity of universallybinding legal norms and their system of enforcement. This is particularlythe case if authorities in a country have persistently refused access to existinginternational mechanisms.[63] Mr Ellis also relies upon a similar position taken by the United Nations HumanRights Committee:53Diplomatic assurances and non-refoulement19. The Committee is concerned that the State party continues to rely onits "deportation with assurances" policy to justify the deportation of foreignnationals suspected of terrorism-related offenses to countries where it isreported that they may face a real risk of torture or other forms of ill-treatmentand notes that, while there are no plans to abandon the policy, its frameworkis under review by the Independent Reviewer of Terrorism Legislation.Despite the memorandums of understanding on deportation with assurancesthat have been concluded with a number of countries and the arrangements forpost-transfer monitoring, the Committee remains concerned that thesemeasures may not ensure that the individuals affected will not be subjected totreatment contrary to articles 6 and 7 of the Covenant (arts. 2, 6 and 7).The Committee recalls its previous recommendation(see CCPR/C/GBR/CO/6, para. 12) and recommends that the State partystrictly apply the absolute prohibition on refoulement under articles 6 and 7 ofthe Covenant; continue to exercise the utmost care in evaluating diplomaticassurances; ensure that appropriate, effective and independent post-transfermonitoring of individuals who are transferred pursuant to diplomaticassurances is in place; refrain from relying on such assurances where the Stateparty is not in a position to effectively monitor the treatment of such personsafter their extradition, expulsion, transfer or return to other countries; and takeappropriate remedial action when assurances are not fulfilled.[64] Mr Ellis refers also to the most recent pronouncement of the Conventionagainst Torture, contained in its General Comment No 4 (issued February 2018, which53 Concluding Observations on the Seventh Periodic Report of the United Kingdom of GreatBritain and Northern Ireland UN Doc CCPR/C/GBR/CO/7 (17 August 2015) (emphasisomitted).was not before the Minister but was placed, in its draft form, before the Judge).54This states:20. The Committee considers that diplomatic assurances from a State partyto the Convention to which a person is to be deported should not be used asa loophole to undermine the principle of non-refoulement as set out inArticle 3 of the Convention, where there are substantial grounds for believingthat he/she would be in danger of being subjected to torture in that State.(footnotes omitted)[65] While there is undoubtedly concern regarding the acceptance of assurancesfrom States where torture is known to be used, this material does not support Mr Ellis'argument that assurances may not be accepted in any circumstances from such state,consistent with New Zealand's international obligations.Case law[66] Nor does his argument find support in the case law. Rather, the cases we werereferred to support the proposition that it is not a breach of New Zealand'sinternational obligations to accept assurances from a country in which there issystemic use of torture if there are reasonable grounds to believe that the assurancesprovided will meet that risk.[67] This issue was addressed in Othman (Abu Qatada) v United Kingdom.55 In thatcase the applicant argued that the state party could not proceed to deport in relianceupon assurances from Jordan that it would not torture the applicant, because Jordandid not abide by its legally binding multilateral international obligations not to torture.The applicant argued that a state party could never lawfully rely upon assuranceswhere there is a systemic problem of torture and ill-treatment.56 The European Courtof Human Rights rejected those arguments, saying:57the Court has never laid down an absolute rule that a State which does notcomply with multilateral obligations cannot be relied on to comply withbilateral assurances; the extent to which a State has failed to comply with itsmultilateral obligations is, at most, a factor in determining whether its bilateral54 General Comment No 4 (2017) on the implementation of article 3 of the Convention in the contextof article 22 (Advanced unedited version) (9 February 2018).55 Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1 (ECHR).56 At [168].57 At [193].assurances are sufficient. Equally there is no prohibition on seekingassurances where there is a systematic problem of torture or ill-treatment inthe receiving State; otherwise, as Lord Phillips observed , it would beparadoxical if the very fact of having to seek assurances meant that one couldnot rely on them.[68] The Court said it was not for it to rule upon the propriety of seeking assurancesor to assess the long-term consequences of doing so; its only task was "to examinewhether the assurances obtained in a particular case are sufficient to remove any realrisk of ill-treatment".58 The Court said that the examination of that risk requiredconsideration of both the general human rights situation in the relevant country andthe particular characteristics of the applicant.59 In a case where assurances have beenprovided by the receiving state, those assurances constitute a further relevant factorwhich can be considered in assessing that risk. In such a situation, the obligation is"to examine whether assurances provide, in their practical application, a sufficientguarantee that the applicant will be protected against the risk of ill-treatment".60[69] The issue of the reliance on assurances to protect against torture was alsoconsidered by the Supreme Court of Canada in India v Badesha.61 The Court saidthat, to be acceptable, such assurances need not eliminate the risk of torture but"must simply form a reasonable basis for the Minister's finding that there is nosubstantial risk of torture or mistreatment".62 The task for the reviewing court was toconsider whether the Minister had reasonably concluded that there was no substantialrisk of murder or ill-treatment.63Conclusion[70] We conclude therefore, that even if there is evidence of systemic ill-treatmentof defendants and prisoners in the PRC (evidence which we address below)New Zealand is not prohibited by international law from accepting and relying upondiplomatic assurances when assessing whether there is a substantial risk that Mr Kimwill be tortured or subjected to extra-judicial killing or the carrying out of the death58 At [186].59 At [187].60 At [187].61 India v Badesha, above n 40.62 At [46].63 At [46].penalty. The issue of whether or not assurances should be accepted requiresan evaluative assessment of the facts by the Minister.64(b) Did the Minister err in failing to address a preliminary question whetherassurances should be accepted in this case?Assessing the general human rights situation[71] The decision of Othman is also relevant to Mr Ellis' second argument.In Othman, the Court said that before assessing risk in light of assurances received,the state must address a preliminary question.65 That question was whether the generalhuman rights situation in the receiving state excludes accepting any assuranceswhatsoever. But, the Court added, it would only be in rare cases that the generalsituation of a country would mean that no weight at all could be given to assurances.66Usually, it said, the court will assess first the quality of assurances given and second,whether, in light of the receiving state's practices they can be relied upon.67[72] The Court cited a number of its own decisions in which the general situationin the requesting state was such that diplomatic assurances were not in themselvessufficient to provide adequate protection against the risk of ill-treatment, eachinvolving proposed extradition to Uzbekistan.68 In Ismoilov v Russia the practice oftorture in Uzbekistan was said to be systematic and indiscriminate such that the Courtwas not persuaded that assurances offered a reliable guarantee against the risk ofill-treatment.69 The same decision was reached in Yuldashev v Russia.70[73] We are satisfied that the "preliminary question" requirement identified inOthman should form part of the law of New Zealand. Therefore, the Minister wasobliged, before determining whether to accept assurances in this case, to first address64 See Lai v Canada (Minister of Citizenship and Immigration), above n 52, at [135]–[143].65 Othman (Abu Qatada) v United Kingdom, above n 55, at [188].66 At [188].67 At [189].68 Gaforov v Russia ECHR 25404/09, 21 October 2010; Sultanov v Russia ECHR 15303/09,4 November 2010; Yuldashev v Russia ECHR 1248/09, 8 July 2010; and Ismoilov v Russia [2009]ECHR 348, (2008) 49 EHRR 42.69 Ismoilov v Russia, above n 68, at [127].70 Yuldashev v Russia, above n 68, at [85]. See also Saadi v Italy, above n 51, at [147]–[148] wherethe European Court of Human Rights expressed the same view in respect of diplomatic assurances,despite no such assurance being provided on the facts of the case.whether the general human rights situation in the PRC was such that diplomaticassurances could not be relied upon. Although the reason for the preliminary questionis not outlined in the case law, it is in our view a necessary inquiry for the followingreason. The fact that serious breaches of human rights occur regularly in a state maybe evidence that the importance of human rights is not understood or valued, oralternatively that the rule of law is not sufficient in the requesting state to secure tothe defendant the benefit of those assurances. In either circumstance, it would not bereasonable to rely upon diplomatic assurances that the applicant's human rights willnot be breached on return.[74] This preliminary question is an important one. Skipping this step in the processrisks that a decision will be taken focusing upon a series of isolated risks withouttaking the broader human rights and rule of law context into account, which isan essential part of any risk assessment. Broken up, the process could produce afalsely reassuring picture as to the effectiveness of assurances.Did the Minister address this preliminary question?[75] In the Ministry's briefing paper provided before the first decision, the Ministerwas advised that it was appropriate to consider the general situation in the receivingstate regarding the subject matter of the assurances. Following the heading "Does thegeneral human rights situation in PRC preclude assurances?", which in turn followeda discussion of the case law, the Minister was advised:Based on the analysis of the human rights situation in the PRC in the sectionson torture and fair trial below, particularly the recent improvements, as wellas the experience of NZ, [Country A] and [Country B] with assurances fromthe PRC [], the Ministry does not consider that the human rights situationin the PRC is such that New Zealand is precluded from relying on assurancesfrom the PRC in this case.[76] This advice was again referred to in the briefing paper produced in 2016 toassist the Minister with her second decision. We see then that the Minister was advisedto address this issue. But we think the advice was obscure. The issues for the Ministershould have been explicitly outlined as we have done at [73]. We mean no criticismof the officials in saying this, as little assistance is available from the authorities.They do not explicitly describe the considerations which arise at the point of thispreliminary issue, or the nature of the values or interests it is directed to protect oraddress.[77] We differ from the Judge as to whether the Minister addressed this preliminaryquestion.71 We do not read the Minister's reasons as indicating that she had done so.She referred to the "general situation" in the PRC but only with regards to torture andonly as a part of her reasoning as to the nature of the risk of torture faced by Mr Kim.The Minister did not address as a separate and preliminary question whether the humanrights situation in the PRC more generally is such that assurances should not be soughtor accepted. Indeed, as the Judge observed, by the time Minister Adams was seizedof the issue, assurances had already been sought.[78] Given the subject matter of this proceeding and applying the heightenedstandard of review we have identified, we do not assume that because the issue isreferred to in the briefing paper, it has been addressed by the Minister. The Ministerhas taken care to record the basis of her decision but has not mentioned this issue inthose reasons. This is reason to doubt that she has addressed it.[79] While we agree with the Judge that it was open to the Minister to seekassurances to meet the risk of torture, we find error in the Minister's failure toexpressly address the preliminary question of the general human rights situation inthe PRC. Accordingly, this ground of appeal succeeds in part.SECOND GROUND OF APPEALDid the Minister take into account a consideration irrelevant to the surrenderdecision?Submissions[80] Mr Ellis also argues that the assurances provided in this instance were in partdirected and accepted by the Minister with a view to establishing the credibility ofthe PRC government for other cases and overcoming widespread refusal of extraditionto the PRC — an impermissible and irrelevant consideration.71 Second judicial review, above n 4, at [66]–[67].Analysis[81] We agree that if the Minister had indeed had regard to such a consideration, itwould be a reviewable error on her part as it would be an irrelevant consideration.But Mr Ellis did not refer us to any evidence to substantiate that allegation. Our ownconsideration of the briefings provided to the Minister reveals the following.In the Ministry's briefing prior to the second decision, comment was made thatthe PRC was highly motivated to comply with assurances given. Reference was madeto MFAT advice as to the serious consequences for the bilateral relationship as well asthe PRC's international reputation, should the assurances not be adhered to.The Ministry also referred to advice obtained from Professor Fu that:China needs, desperately, international cooperation in mutual legal assistancein criminal matters so that China can seek extradition of its fugitive offenders.To secure cooperation from other countries and achieve China's policy goalof effective extradition, China needs to be credible in the eyes ofthe international communities and Mr Kim's case offers an opportunity forChina to do so.[82] This does not however provide evidence that the Minister intended to securethese outcomes for the PRC through the surrender of Mr Kim. Rather the materialwas presented as evidence that the PRC would be motivated to honour its assurances.This material was clearly relevant to the Minister's assessment of how likely it wasthat the PRC would comply with its undertakings.[83] We see nothing in this ground of appeal.THIRD GROUND OF APPEALDid the Minister err in accepting assurances in relation to torture as adequate toprotect Mr Kim on return to the PRC?Submissions[84] It is common ground that:(a) The Minister must not surrender Mr Kim if there are substantialgrounds for believing he will be subjected to torture in the PRC.(b) The Minister directed herself that this was the test to be applied.(c) The Minister was satisfied that there was a risk that Mr Kim would betortured if returned to the PRC.(d) The Minister was satisfied that the assurances met that risk of torture.[85] Mr Ellis argues first that the Minister did not apply the test she identified, butrather asked herself what Mr Kim's risk was relative to other detainees in the PRC.This argument seems to be a re-formulation of the argument rejected by the Judge thatthe Minister had applied the wrong legal test: whether Mr Kim was at "high risk" oftorture.72[86] It is also argued that the Minister wrongly assessed the extent and nature ofthe risk that Mr Kim faced. There are two aspects to this argument. First, Mr Ellissubmits that the Minister could not reasonably conclude that Mr Kim was not ina high-risk group. Mr Ellis submits that the Judge noted, but did not adequatelyaddress, expert evidence from Mr Ansley that torture in China is so routine it wouldbe "astonishing if a person accused of homicide were not subject to torture".73Secondly, it is contended for Mr Kim that the Minister was wrong to take into accountas reassuring both the fact Mr Kim would be detained in Shanghai, and the stage ofthe investigation in connection with Mr Kim, as reducing the risk he would be tortured.In taking these matters into account, the Minister repeated factual errors identified bythe Judge in the first judicial review but, it is argued, wrongly overlooked by the Judgein the second judicial review.[87] Finally, Mr Ellis submits that the Judge did not adequately addressthe Minister's failure, in turn, to properly assess the effectiveness of the PRC'sassurances directed to the risk of torture. Neither the Minister nor the Judge addressedevidence as to the following:72 The Judge rejected this submission in the first judicial review, see First judicial review, above n 2,at [65]. This submission was not addressed by the Judge in the second judicial review.73 Second judicial review, above n 4, at [58].(a) The extent to which evidence obtained under torture is readily admittedin Chinese courts. Whilst the Criminal Procedure Law of the People'sRepublic of China (2012) provides in principle for the exclusion ofevidence obtained by torture, such exclusion is rare and, even in suchcases, does not result in acquittal for the victim or other remedy orsanction.(b) The absence of lawyers during interrogations.(c) The persecution of defence lawyers to an extent that they are unlikelyto raise concerns about the admissibility of evidence.(d) The way the system operates to prevent "whistle-blowing" on torture.(e) The consensus amongst commentators and respectednon-governmental bodies that monitoring cannot be effective toprevent torture in individual cases.[88] In these circumstances, Mr Ellis argues, the assurances could not reasonablyprotect Mr Kim against torture should he be returned to the PRC — monitoring byNew Zealand consular officials, filming of interrogations and seeking reports fromparticipants in the system can never be adequate to protect against systemic orwidespread torture, given the inherent nature of torture.74 Mr Ellis argues thatthe Minister failed to address this issue and the Judge wrongly failed to find error inthe Minister's omission in this regard.Evidence before the Minister in connection with use of torture and extra-judicialkillings in the PRC[89] Ministry officials had provided extensive briefing materials to the Minister onthe practice and prevalence of torture in the PRC. The first briefing paper summarisedthe views of the consensus of commentators and the United Nations that there isoverwhelming credible evidence of routine use of torture and ill-treatment in the PRC,particularly to extract confessions. The briefing paper also noted consensus that74 See discussion at [132] of this judgment.the initial period following detention or arrest is the time that suspects are most at riskof torture or ill-treatment. The Minister was briefed that the criminal justice system isheavily dependent upon confessions for proof of guilt, with a confession viewed asthe "king of evidence".[90] The Minister was briefed as to various reforms in the PRC criminal justicesystem. Since the enactment of the Criminal Procedure Law and the Criminal Law ofthe People's Republic of China in 1979, it has been illegal to obtain confessions bytorture in the PRC.75 Procedural reforms in 1996 made clear that a confession isneither necessary nor sufficient for a conviction.76 Finally, further procedural reformsin 2012 required the filming of interrogations, and provided that statements fromdefendants obtained through illegal means must be excluded as evidence.77[91] The Minister was advised that while the incidence of torture and ill-treatmentappears to have reduced after these reforms, particularly in urban areas, commentatorsand the United Nations still consider it a significant problem. This was particularly incases involving well known high-risk groups, such as religious and political dissidents.However, while the risk of torture is especially high for political or religiousdissidents, that risk is also present for those accused of murder in ordinary criminalcases. The Minister was briefed that, with the exception of high profile cases orcrackdowns, police officers are rarely held responsible for abuse, and receive lightpenalties if they are. She was referred to the following passage from Human RightsWatch:78The Chinese law enforcement system is structured in ways that requirethe police, the procuratorate, and the court to "mutually cooperate" with eachother to solve crimes under the leadership and coordination of the CCP's[Chinese Communist Party] Political and Legal Committee at the same level(art 7 [Criminal Procedure Law]). This is especially true in political cases andduring campaigns targeting particular types of crime. Becausethe procuratorate and the courts are required to cooperate with the police,which is more powerful than they are, under the leadership of the CCPPolitical and Legal Committee, it is difficult for them to check police abuse.75 The relevant provisions are now found in the Criminal Procedure Law of the People's Republicof China (2012) [Criminal Procedure Law], art 50; and Criminal Law of the People's Republic ofChina (2015) [Criminal Law], art 247.76 Criminal Procedure Law, art 53.77 Articles 54, 58 and 121.78 Human Rights Watch "Tiger Chairs and Cell Bosses: Police Torture of Criminal Suspects inChina" (13 May 2015) <hrw.org> at 92 (footnotes omitted).The reluctance to hold police officers accountable is also likely because policeplay an important role in enabling the CCP to retain its grip on power.[92] She was referred to reports issued by the Special Rapporteur on Torture, one in2006 following visits to the PRC and a follow up report issued in 2010.79 In the 2006report the Rapporteur said that based on the considerable number of allegations he andhis predecessors had received, as well as those received by other governmental andnon-governmental organisations, and his own fact finding, he was of the view that,though on the decline in urban areas, torture remained widespread in the PRC.80The Minister was also referred to the United Kingdom's Home Office OperationalGuidance Note, which is a guidance note published periodically for caseworkers whenconsidering claims for asylum and humanitarian protection.81 In connection withprison conditions, the Operational Guidance Note states:82There is objective evidence of security officials severely ill-treating prisonersand detainees, that the use of torture to extract forced confessions iswidespread and the number of deaths in custody, some due to torture, is amatter for concern.[93] The Minister was also referred to a report of the Human Rights Watch group,issued in 2015, which supported the view that ordinary criminals remained at risk oftorture and that murder suspects are at high-risk of torture.83 The Ministry notedhowever, that no other report identified those accused of murder as being at higher riskof torture. And, the Ministry stressed, the Human Rights Watch report did not addressMr Kim's particular circumstance, a foreign national, the subject of formal assurancesand diplomatic monitoring.[94] In the Ministry's advice to the Minister for the first decision, the Ministryundertook an analysis of the assurances against factors the Court in Othman listed asrelevant to an assessment of assurances:79 Manfred Nowak Report of the Special Rapporteur on torture and other cruel, inhuman ordegrading treatment of punishment: Mission to China UN Doc E/CN.4/2006/6/Add.6 (10 March2006) [Nowak Report]; and Manfred Nowak Report of the Special Rapporteur on torture andother cruel, inhuman or degrading treatment or punishment: Follow-up to the recommendationsmade by the Special Rapporteur UN Doc A/HRC/13/39/Add.6 (26 February 2010)[Nowak follow-up].80 Nowak Report, above n 79, at [72].81 United Kingdom Home Office Operational Guidance Note: China (October 2013).82 At [3.16.17].83 Human Rights Watch, above n 78, at 33.(a) Whether the general characteristics of the person to be extraditedare such that he is at particular risk of ill-treatment? The Ministryconsidered Mr Kim was not a member of any well-known high-riskgroup however accepted that he is charged with murder, whichthe Human Rights Watch identified as a high-risk group.(b) Whether the general human rights situation in the PRC precludesthe use of assurances? The Ministry did not consider that the humanrights situation in the PRC was such to preclude the use of assurancesin this case.(c) Whether the assurances are specific or are general and vague?The Ministry assessed the assurances as appropriately focused.(d) Can the entity giving the assurances bind the receiving state?While the assurances are not binding, the Ministry said the entities whohad given the assurances were mandated to do so, and the PRC wouldbe aware of the adverse consequences to its bilateral and multilateralrelationships.(e) If the assurances have been issued by the central government ofthe receiving state, whether local authorities can be expected toabide by them? The Ministry said that since Mr Kim will be detainedand tried in Shanghai, New Zealand can expect the local authorities toabide by the assurances.(f) Whether the assurances concern treatment which is legal or illegalin the receiving state? In respect of torture, the Ministry noted thatthe assurances in relation to torture concerned treatment which wasillegal in the PRC.(g) The length and strength of the bilateral relations betweenthe sending and receiving states, including the receiving state'srecord in abiding by similar assurances. The Ministry reported thatMFAT's advice was that the PRC have a long standing diplomaticrelationship (since 1972) and frequent high-level contact. The Ministrynoted there was an additional dimension of Mr Kim being aSouth Korean citizen. MFAT advised that South Korea and the PRChave a very strong bilateral relationship.(h) Whether compliance with the assurances can be objectivelyverified through diplomatic or other monitoring mechanisms,including providing unfettered access to the applicant's lawyers?The Ministry noted that diplomatic and consular personnel may visitMr Kim and the assurances include provision for him to be examinedby independent medical professionals.(i) Whether there is an effective system of protection against torturein the receiving state, including whether it is willing to cooperatewith international monitoring mechanisms (includinginternational human rights NGO's) and whether it is willing toinvestigate allegations of torture and to punish those responsible?The Ministry advised that while there have been significantimprovements in recent years, the PRC does not have a system ofprotection against torture that would be considered effective byinternational standards.(j) Whether the applicant has previously been ill-treated inthe receiving state? Mr Kim makes no such claim.(k) Whether MFAT obtained information of other countriesexperiences with assurances from the PRC? The Ministry confirmedit received information from [Country A] and [Country B], with bothcountries confirming the PRC's adherence to the relevant assurance.(l) Whether the reliability of the assurances has been examined bythe domestic courts of the sending/contracting state? The Ministrynoted that this was an issue Mr Kim could raise on judicial review.Minister's first decision[95] The Minister accepted that there was evidence that torture is still an issue inthe PRC but was satisfied there were not substantial grounds to believe that Mr Kimwould be in danger of an act of torture if returned with the benefit of the assurances.This was because there were significant factors which differentiated Mr Kim fromthose likely to be at risk of torture:(a) The PRC provided detailed and specific assurances about Mr Kim'streatment which would also provide a significant deterrent to the PRCcommitting any act of torture. The Minister referred to experience thatNew Zealand and other countries have of assurances given by the PRCbeing honoured.(b) The assurances will be proactively monitored, in a timely manner withsufficient resources committed to that. There will also be promptprovision of interrogation recordings. She was satisfied there wereeffective mechanisms to ensure compliance and to deal with breaches.(c) Mr Kim is an ordinary criminal suspect, and not a member ofa well-known high-risk group such as political or religious dissidents,ethnic minorities or human rights defenders. Although she acceptedHuman Rights Watch recently identified murder suspects as"high risk", she was not clear how reliable that finding was andconsidered the presence of assurances and other differentiating factorsin Mr Kim's circumstances meant he was personally not at high-risk.(d) The prima facie case against Mr Kim appears relatively strong andincludes scientific evidence which has been reviewed in New Zealand.This means that Mr Kim is at a lesser risk of the use of torture to extracthis confession.(e) Mr Kim's alleged offending has been investigated, meaning that he willspend less time in pre-trial detention. Commentators consider thatpre-trial detention is the time a suspect is most at risk of torture.Professor Fu's opinion was that the time of highest risk is interrogationat a police station, which would not occur in Mr Kim's case as he wouldgo straight to a detention facility. The Minister noted that torture indetention facilities in ordinary criminal cases had rarely been reportedin recent years.(f) The Minister took into account that Mr Kim would be tried in Shanghaiwhere commentators suggest incidences of torture are on the decline.[96] While accepting that Mr Kim would not be allowed legal representation duringinterrogation, which is regarded as a good protection against torture, the Minister wasnevertheless satisfied that assurances provided by the PRC, MFAT's proactivemonitoring of them, and Mr Kim's legal rights in the PRC would together be sufficientto protect Mr Kim's rights.First judicial review[97] The Judge recorded the respondents' acceptance that if Mr Kim is to beextradited, assurances from the PRC about his treatment and fair trial rights arenecessary because of the evidence of widespread torture in the PRC.84[98] She noted however that there was only limited information about whetherthe PRC had honoured assurances in the past — this was the first occasion on whichNew Zealand had been asked to extradite a person to the PRC and the first occasionon which New Zealand has negotiated assurances.85 Nevertheless she said "Mr Kim'sextradition takes place against this backdrop".86[99] The Judge rejected an argument that the Minister had asked herself the wrongquestion; whether Mr Kim was at "high-risk" of torture.87 She said that the Ministerset out the correct test, whether there were substantial grounds to believe Mr Kim84 First judicial review, above n 2, at [49]–[57] and [254].85 At [254].86 At [254].87 At [65].would be at risk of torture. In referring to "high-risk" the Minister was explaining herview that Mr Kim was not in any group well-known as being at risk of torture.88[100] She noted the PRC system relies heavily on confessions, yet Mr Kim had notconfessed to killing the victim.89 He maintained that he was being framed and raisedthe possibility that his girlfriend, whose father is said to be a high-ranking official inthe Communist Party, may be responsible.90 Therefore the apparent strength ofthe case against Mr Kim did not appear to materially reduce his risk of ill-treatment inpre-trial detention when interrogated by police.91 She noted also that there was someinformation, even if limited, that murder suspects are more at risk of torture orill-treatment than those accused of some other crimes.92[101] The Judge said that the Minister did not have adequate information on whichto conclude that Mr Kim's likely detention in Shanghai would materially reduce hisrisk.93 The Judge concluded that Mr Kim was therefore potentially at personal risk,even if not at the highest level, and the critical issue was whether the assurances wouldadequately protect Mr Kim.94[102] The Judge rejected Mr Ellis' arguments that the Minister had failed to addressthe consensus of opinion that assurances can never protect against the risk ofwide-spread torture, holding as follows:[215] The assurances endeavour to protect against torture and ill-treatmentthrough the extensive access which New Zealand representatives(together with an interpreter, a medical profession and a legal expert) arepermitted. I do not consider the Minister was wrong to place reliance onthe monitoring components of the assurance because they do not provide foran independent expert on torture to carry out monitoring. As the Minister said,Mr Kim was not within a group recognised as being at a particularly high riskof torture. The Minister was entitled to consider that the extensive accesspermitted by the assurances would provide a measure of protection forMr Kim. It will of course be necessary that New Zealand representatives carryout the visits that are contemplated.88 At [65].89 At [68].90 At [71] and [255].91 At [255].92 At [255].93 At [255].94 At [255].[221] Notwithstanding the concern expressed by the UK Select Committeethat consular services fall well below what is necessary, the informationprovided in the briefing paper indicates that New Zealand has someexperience in monitoring the treatment of New Zealanders detained inChinese prisons. It also, however, illustrates there are difficulties. Despitethe monitoring provided by New Zealand officials it seems that in one casea complaint was made only following the detainee's return from the PRC. It isnot known from the information provided whether that complaint had validity.It is also not clear if the assistance referred to in the briefing paper isproactively provided or whether it depends on a request from the detainee.(footnotes omitted)[103] She directed reconsideration of that decision as noted above.95Briefing prior to the second decision[104] In her affidavit filed in this second judicial review proceeding, the Ministersaid she remained concerned that there could be a delay of as much as two monthsbetween an interrogation and New Zealand representatives being given access tointerrogation recordings (based on the maximum period of time of the investigationphase, and the time under PRC law at which such information becomes available toa defendant's lawyer). She therefore instructed her officials to explore this issuefurther. Her officials also made inquiry of MFAT in connection with the other issuesidentified by the Judge.[105] As to the inability to disclose information to third parties, MFAT advised thatdisclosure to third parties of information about Mr Kim's treatment was withinthe scope of the assurances received, if that disclosure was consistent withthe objectives of monitoring and ensuring proper treatment. MFAT expressed the viewthat the limitation the PRC imposed on disclosure of information was notunreasonable, noting that New Zealand would seek similar confidentiality protectionswere New Zealand to give such an undertaking in similar circumstances. It said:Although the assurances preclude disclosure of specific details obtained bydiplomatic or consular representative through their contact with Mr Kim,the assurances do not prevent New Zealand from sharing comments of ageneral nature with other countries or third parties on our experience with thePRC in respect of diplomatic assurances. New Zealand was able to obtainsuch information from other countries in the context of this case.95 At [223].[106] MFAT also addressed the Judge's concern as to the effectiveness of bilateraldiplomatic relations in protecting Mr Kim should issues arise with the assurances.It advised that if a serious issue arose that could not be resolved through bilateralmechanism to New Zealand's satisfaction, the assurances could be regarded as havingbroken down. At that point, New Zealand would be entitled to consider its owncommitments under the assurances as of no further effect. In such a case,the assurances would not preclude New Zealand from taking any action outsidethe bilateral mechanism. MFAT continued:In light of the serious repercussions of such an occurrence for the bilateralrelationship between the PRC and New Zealand (and potentially the PRC andSouth Korea), as well as the PRC's international reputation, we continue toregard such an eventuality as very unlikely.[107] The Minister also received updated briefings on the Convention againstTorture's Concluding observations on the fifth periodic report on China published3 February 2016, to the effect that the practice of torture and ill-treatment is still deeplyentrenched in the criminal justice system, which overly relies on confessions asthe basis for conviction.96 The majority of allegations of torture and ill-treatment takeplace during pre-trial and extra-legal detention and involve public security officers,who wield excessive power during the criminal investigation without effective controlincluding by the judiciary.97 Although the PRC's Criminal Procedure Law providesthat evidence obtained through torture is not admissible, the report records informationthat courts often shift the burden of proof back to defendants during the exclusionaryprocedures and dismiss lawyers' requests to exclude the admissibility of confessions.98[108] The Committee against Torture referred to reports that meetings betweenlawyers and suspects are often monitored despite prohibition by law.99 The Committeealso expressed concern that human rights defendants and lawyers, petitioners, politicaldissidents and members of religious or ethnic minorities continue to be charged withbroadly-defined offences as a form of intimidation, such as "picking quarrels and96 Committee against Torture Concluding observations on the fifth periodic report of China UN DocCAT/C/CHN/CO/5 (3 February 2016).97 At [20].98 At [32].99 At [34].provoking troubles".100 Finally, of relevance to the present, the Committee said thatwhile it appreciated the amended provisions of the Criminal Procedure Law requiringthe video recording of interrogations in major criminal cases, it had receivedconcerning reports about the system for recording which is carried out by the legaldepartment of the public security organ.101[109] The Ministry obtained advice from Professor Fu about whether Mr Kim wasat risk of torture during the pre-trial detention phase, particularly given that it seemedhe had no right to a lawyer during interrogation and it was unclear if he had a right tosilence. The Professor's advice traversed a number of matters, including the incidenceof torture. Professor Fu said that while torture has always been a concern inthe Chinese criminal process, recent allegations had been made in two types of case— where the offence endangers national security in some way or where there areallegations of corruption.[110] As to the place of torture, Professor Fu said that torture "traditionally" occursinside police stations where investigators have complete control. Therefore, to preventtorture, the 2012 amendments to the Criminal Procedure Law included a requirementthat detainees be taken to a detention facility within 24 hours of detention. Detentioncentres have an instruction not to allow torture to take place. Professor Fu said thattorture within regular detention facilities in relation to ordinary criminal cases,including murder, has been rarely reported since 2012.[111] Professor Fu was also asked if there was any risk that the recordings ofMr Kim's interrogations would be manipulated to conceal torture. He did not squarelyanswer that question, but rather narrated the rules and regulations setting outthe requirements for recordings, which include a requirement that they not be selectiverecordings and cannot be edited or altered. Professor Fu said thatthe Supreme People's Court has "sent out strong signals that exclusion of confessionstatement[s] obtained through torture is a judicial duty and is politically possible".He also said that there is a changing culture against torture in the criminal process.That is because China needs international cooperation and mutual legal assistance in100 At [18].101 At [34].criminal matters, so that it can seek extradition of its economic fugitives.The Professor went on to say:It will be highly unlikely that Mr Kim will be tortured to confess his crimegiven the reputational cost and given the evidence that the police havegathered. As a result, there will be no need at all to manipulate recording todisguise torture or ill-treatment.[112] Finally, the Minister considered submissions provided on behalf of Mr Kim.The Minister also had before her the affidavit of Mr Clive Ansley, which referred to"an escalating campaign of terror" against the criminal defence and human rights bar.Mr Ansley's evidence was that torture of murder suspects was so widespread that hewould be surprised if Mr Kim was not tortured.[113] The Minister confirmed her decision to surrender Mr Kim.Second judicial review[114] On the second judicial review, the Judge rejected arguments that the absenceof international monitoring by independent agencies meant the assurances wereinadequate.102 She noted the additional information the Minister had aboutNew Zealand's ability and intention to monitor Mr Kim, which included details aboutthe available resources.103 The Judge was satisfied it was reasonably open tothe Minister to conclude that New Zealand was able to carry out the necessarymonitoring on the basis of the information.104[115] In her judgment on the first judicial review, the Judge said this ofthe assurances:[214] Taken at face value the assurances appear to provide substantialprotections for Mr Kim's benefit. Whether they will do so depends uponwhether there can be confidence that they will be honoured in their full spirit.In considering this it is important to keep in mind that torture is a systemicproblem in the PRC, a person is particularly at risk during pre-trial detentionbecause the criminal justice system continues to rely heavily on confessions,the period of detention before a person must be brought before a Judge is toolong, it is not always easy to detect when torture has occurred, and lawyerswho raise human rights concerns may thereby put themselves at risk.102 Second judicial review, above n 4, at [64]–[67].103 At [64].104 At [64].[116] In the second judicial review proceeding, the Judge concluded as follows:[65] I do not accept that the Minister failed to consider that a disclosure ofany breach after the event does not prevent torture and ill-treatment. It isapparent from the Minister's process and from the Minister's Reasons that shewas alive to this issue. This is why there was such a focus on ensuringeffective proactive monitoring would take place.[67] Against these matters the focus of the Minister's reconsideration wasplaced squarely on the effectiveness of the assurances to protect Mr Kim fromtorture and ill-treatment. The further information she received after the firstjudicial review was directed to Mr Kim's risks during pre-trial detention andwhether the assurances would protect Mr Kim. This included advice thatChina would want to demonstrate to the international community its propertreatment of Mr Kim because it needed cooperation in order to extraditeeconomic fugitives. It was reasonably open to the Minister to conclude,in light of the information before her, that the assurances would protectMr Kim from torture and ill-treatment and that accordingly this mandatoryrestriction on surrender did not apply.Analysis(a) Did the Minister take into account an irrelevant consideration, namely relativerisk?[117] We do not consider that it was irrelevant for the Minister to address whetherMr Kim was a member of a high-risk group. Nor has Mr Ellis persuaded us thatthe Minister relied upon her finding that Mr Kim was not a member of a high-riskgroup as the basis for her finding that he was not at risk of torture if surrendered withthe assurances in place. It was relevant to the assessment of the magnitude of riskfaced by Mr Kim to address whether he fell within one of the groups at the highestrisk of torture. That was not an irrelevant consideration. If the Minister had moveddirectly from the conclusion Mr Kim was not in a high-risk group to the conclusionthat Mr Kim was not at risk of torture for the purposes of the Convention, there wouldbe more strength in Mr Ellis' submissions. But she did not. She took into account allof the other matters she said reduced his risk, including where he would be held,the case against him, and the existence of assurances.(b) Did the Minister err in assessing the magnitude of the risk that Mr Kim would betortured?[118] The first aspect to this ground is the argument that the Judge could notreasonably conclude that Mr Kim was not at high-risk of torture. The evidencerelevant to this issue is as follows. Both Mr Ansley's affidavit and the Human RightsWatch report contained assertions that those accused of murder were at high-risk oftorture. The Minister was entitled to question the significance of the evidence ofthe Human Rights Watch report as she did on the basis that its evidential foundationfor those assertions was not extensive. However both the report and the evidence ofMr Ansley were corroborated, at least to some extent, by the material in the briefingpapers which explained that the reforms in 2010 to 2012 occurred against the backdropof a high-profile murder case, where the accused was ultimately found to have beenwrongly convicted on the basis of a coerced confession. The Minister couldreasonably conclude, based on her concerns regarding the evidential basis for thismaterial and evidence, that further inquiry was required. She could not however,reasonably conclude that it could be put to one side.[119] The Minister also had before her Professor Fu's statement that allegations oftorture have seldom been reported since 2012 by ordinary criminal accused, includingthose accused of murder. Professor Fu did not however, go so far as to conclude onthis basis that murder accused were not at high-risk of torture. Professor Fu's evidenceonly went so far as to suggest that a new anti-torture culture has emerged in the PRCand that allegations of torture are usually only made in cases involving political dissentor serious corruption. In Professor Fu's view, Mr Kim's murder charge wasan "ordinary criminal case". Professor Fu did not make any reference to seniorCommunist Party members' alleged interest in convicting Mr Kim which could makethis case outside of the run of "ordinary criminal cases". In assessing the significanceof Professor Fu's statement about reports of torture, the Minister had also to take intoaccount the material before her that those who remain detained seldom complain oftorture, for fear of recrimination and because such a complaint will be unlikely to resultin any disciplinary action.[120] The material before the Minister was therefore sufficient to raise a serious issueas to whether murder accused are at high risk of torture. Professor Fu's opinion,limited as it was, did not meet this point. The Minister's conclusion that Mr Kim wasnot in a high-risk group was, on the material before her, a view of the facts that couldnot "reasonably be entertained" and amounted to an error of law.105 If she consideredthe material on the issue incomplete, further inquiry was required.(c) Did the Minister err in concluding that other factors reduced Mr Kim's risk?[121] In the first judicial review judgment, the Judge found that the Minister haderred when assessing the risk Mr Kim faced. She did so in relying on the stage ofthe investigation and the strength of the case against Mr Kim because that gave noweight to a relevant factor, the heavy reliance the PRC's criminal justice system placeson confessions.106 She also held that the Minister's reliance upon Shanghai asthe place where Mr Kim would be tried could not reasonably be given much weightgiven the limited information upon which that was based.107 She said that for Mr Kim"[t]he key differentiating factor was the assurances".108[122] Although the Judge identified these errors in the first judicial review she didnot list them among the "principal" reasons for allowing the review.109 It may be thatthis is why the Minister overlooked these findings when she came to reconsiderher decision.[123] In her second decision the Minister again referred to the fact that Mr Kimwould be tried in Shanghai as reducing the risk he would be tortured. The Ministeragain failed to address the extent to which the PRC criminal justice system dependsupon confession. As she did in her first decision, she regarded as reducing Mr Kim'srisk that the prima facie case against him appears to be relatively strong and that hisrole in the alleged offending has been investigated but failed to note the significanceof the fact that he maintains his innocence and has not confessed.105 Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374 (PC) at 388; citing Edwards v Bairstow[1956] AC 14 (HL) at 29.106 First judicial review, above n 2, at [84].107 At [84].108 At [84].109 At [259].[124] The Minister did not receive evidence in the period between the first andsecond decision to provide any firmer foundation for her conclusion that the locationof the trial reduced the risk of torture. While it is true that the Minister had materialfrom the United Nations to suggest the incidence of torture is on the decline inShanghai, that told her nothing in absolute terms as to how prevalent torture is inShanghai — only that it is less prevalent than it once was. The evidence before herwas that torture remains widespread in the PRC.[125] The Judge did not address these errors in the second judicial review judgment,focusing only on whether the three issues identified with the assurances had beenadequately addressed. We are uncertain as to whether this argument was made forMr Kim at the second judicial review hearing. The pleadings do not clearly identifythese errors as a ground of review — we say clearly as the pleadings are confused anddifficult to follow. But no issue was taken by the respondents to this argument beingraised on appeal.[126] We regard the deficiency in evidence of these issues as material, because boththe nature and extent of the risk the assurances must meet are critical to assessingthe adequacy of the diplomatic assurances. Yet in making her second decision,the Minister has continued to rely upon these factors (along with others) as reducingMr Kim's risk — in other words she has taken them into account in assessing the sizeand nature of the risk Mr Kim will face on return, absent the reassurances. Reviewingthis matter to the standard that we have identified, we consider that in this she was inerror. Both limbs of this argument lead us to conclude that the Minister's assessmentof the magnitude of the risk that any assurances must address was flawed.(d) Was the Minister's conclusion that the assurances were adequate to protectMr Kim reasonable?[127] The Minister proceeded upon the assumption that the following providedadequate protection for Mr Kim against any risk of torture he faced:(a) the PRC undertook to comply with applicable domestic andinternational law;(b) Mr Kim would have access to legal representation before and afterinterrogation;(c) Mr Kim's interrogations would be filmed;(d) torture would be detected through consular visits and the ability to haveMr Kim examined; and/or(e) Mr Kim or others to whom the officials have access would report thattorture.The Judge found no error in this assessment.[128] We assess the reasonableness of the Minister's conclusion in the followingcontext. Torture is illegal, and the law provides that statements obtained by torture areto be excluded. A cultural shift away from torture in the PRC is underway.Nevertheless, torture remains widespread and confessions obtained through torture areregularly admitted in evidence. It logically follows, we consider, that there areinadequate systems in the PRC to prevent torture.[129] In advising the Minister, the Ministry failed to grapple with the implications ofthese facts. The Ministry's advice, as Mr Ellis argues, placed reliance uponthe illegality of torture and various procedural reforms. For instance, instructions todetention centres that there should not be torture. It may be that in this, they werereassured by the opinions of Professor Fu set out above. But Professor Fu's opinionseems to conflict in this respect with the opinions of international commentators andMr Ansley. Whilst there is no challenge to the expertise of the international bodies orthe expertise of Mr Ansley (rightly so it seems to us), it is unclear what qualifiedProfessor Fu to be treated by the Ministry as an expert on how the law is implementedin practice.[130] There was reliable information before the Minister (such as in the Home OfficeOperational Guidance Note) that torture regularly occurs at detention centres.This suggests that torture occurs when the state says it should not, which raises anobvious issue as to the effectiveness of an undertaking by the state that Mr Kim willnot be tortured.[131] Similar issues were discussed by the Supreme Court of Canada in Suresh vCanada (Minister of Citizenship & Immigration).110 In that case the Court addressedthe proposed deportation of a Convention refugee to Sri Lanka on the groundsthat the refugee was a security risk to Canada. Commenting on the effectiveness ofassurances to protect the proposed deportee, the Court said:111A distinction may be drawn between assurances given by a state that it willnot apply the death penalty (through a legal process) and assurances by a statethat it will not resort to torture (an illegal process). We would signalthe difficulty in relying too heavily on assurances by a state that it will refrainfrom torture in the future when it has engaged in illegal torture or allowedothers to do so on its territory in the past. This difficulty becomes acute incases where torture is inflicted not only with the collusion but throughthe impotence of the state in controlling the behaviour of its officials.Hence the need to distinguish between assurances regarding the death penaltyand assurances regarding torture. The former are easier to monitor andgenerally more reliable than the latter.[132] In this case, the Minister placed reliance upon the skill and experience of thosemonitoring Mr Kim. But the consensus from international bodies is that there are veryreal difficulties in monitoring individual cases to detect torture. We highlightthe following reasons why even regular visits by skilled monitors might not beadequate protection. Those who torture, do so outside the law. It can be expected thatthey take steps to ensure that what they do is not recorded or detected. Forms of tortureas utilised in the PRC may, or may not, leave visible marks upon the detained person.The Special Rapporteur noted a wide array of torture methods including beating, useof electric shock, submersion in water or sewage, deprivation of sleep, food, water,prolonged solitary confinement, and enforced holding of stress positions.112[133] The assurances do not allow without notice, or even short notice, visits byconsular staff. Visits will need to be scheduled. A requirement that visits be schedulednaturally makes it easier for signs of torture to be concealed.110 Suresh v Canada (Minister of Citizenship & Immigration) 2002 SCC 1, [2002] 1 SCR 3.111 At [124].112 Nowak Report, above n 80, at [45].[134] Reliance was placed by the Minister upon the recording of interrogations.But the Minister did not address the material before her that showed this means ofmonitoring had significant limitations. Recording the formal interrogation does notaddress the risk of torture occurring when the cameras are not turned on. There wasextensive material before the Minister that interrogations in the PRC are selectivelyrecorded, and that notwithstanding rules in connection with recording interrogations,torture does take place outside video surveillance. Professor Fu was asked, but didnot address, whether there was a risk of selective recording, or tampering withthe recording.[135] The assurances rely upon Mr Kim, and others associated with the incarcerationof Mr Kim, being free to blow the whistle on any torture. But the Minister does notappear to have turned her mind to the systemic disincentives to complain of tortureidentified in the material before her. Were Mr Kim to complain, he would neverthelessremain under the control of those who had perpetrated the torture. There is nothing inthe assurances to provide otherwise. There was also information before the Ministerthat those who torture seldom face consequences for so doing. A co-worker is unlikelyto blow the whistle on torture, if they know they will probably have to continue towork with the wrong-doer. Mr Ansley's evidence was that a Chinese doctor wouldnot ever report torture by prison staff, police or prosecutor.[136] As to reliance upon Mr Kim's access to a lawyer, there was also evidence thatlawyers are not free to represent their clients without fear of retribution. And even ifthe presence of a lawyer could provide adequate protection for Mr Kim, the assurancesdo not give him the right to a lawyer during interrogation.[137] In his advice to the Minister, Professor Fu referred to the emerging cultureagainst torture in the Chinese criminal justice system. But there was material beforethe Minister to suggest that the "exclusionary rule", the rule that statements obtainedby torture will not be admitted in evidence, is not being consistently or successfullyimplemented. In its briefing paper provided before the second decision, the Ministryquoted Professor Fu's statement to Amnesty International:113The court has not been able to apply the exclusionary rules effectively. Part ofthe reason is the lack of experience. Judges do not have the know-how andthere does not seem to be any systematic training. A larger problem is stillthe power of the police.[138] To conclude on this point, applying the relevant standard of review, weconsider that the Minister erred in failing to address how the assurances could protectagainst torture when:(a) torture is already against the law, yet persists;(b) the practice of torture in the PRC is concealed and its use can bedifficult to detect in particular cases;(c) videotaping of interrogations is selective and torture often occursoutside the recorded session;(d) evidence obtained by torture is regularly admitted in court; and(e) there are substantial disincentives for anyone, especially the detainedperson, reporting the practice of torture.[139] We consider that these are deficiencies in the Minister's decision-makingprocess that should have been identified by the Judge. We consider she erred in thisrespect. Having upheld a number of arguments advanced by Mr Ellis, this ground ofappeal must succeed.113 Amnesty International communication exchange with Professor Fu on 1 October 2015,as published in Amnesty International "No End in Sight; Torture and Forced Confessions inChina" (11 November 2015) <www.amnesty.org> at 29.FOURTH GROUND OF APPEALDid the Minister err in relying upon diplomatic assurances as an adequateprotection against the imposition of the death penalty?Exposure to death penalty[140] Mr Kim is suspected of intentional homicide which, under art 232 ofthe Criminal Law, is punishable by death or lesser penalty. As earlier noted, s 30(3)(a)of the Extradition Act provides that a Minister may decide not to surrender ifthe person may be or has been sentenced to death. Therefore this is a discretionaryrestriction on surrender, seemingly contemplating that there may be situations in whichextradition to face the possibility of capital punishment will be allowed.We understand that New Zealand has not extradited in such circumstances, and that asa matter of course assurances are sought to ensure that the person subject ofthe extradition request will not be sentenced to death.114[141] The text of the Supreme People's Court determination presented along withthe request for Mr Kim's extradition was as follows:According to Article 50 of Extradition Law of the People's Republic of China,it is hereby decided that,when Kyungyup Kim is extradited from New Zealand to the People'sRepublic of China, if he is convicted after trial and the crime for which he isconvicted is punishable by the death penalty according to Criminal Law,the trial court will not impose the death penalty on him, including deathpenalty with a two-year reprieve.Submissions[142] Mr Ellis argues that the Minister failed to conduct adequate inquiries intothe PRC's compliance with diplomatic assurances provided by it. He says that properinquiry would have revealed that at least one assurance, given by the PRC to supportan extradition request from Ireland to the PRC, was breached. Mr Ellis argues thatonce the Minister was informed of that breach, raised by him at the first judicial review114 In Canada, the Minister is required in all but "exceptional cases" to seek assurances: United Statesv Burns, above n 18, at [8].hearing, she could not reasonably proceed upon the assumption that the PRC wouldhonour the death penalty assurance.[143] He argues further that, in contrast to the other assurances given, the deathpenalty assurance is supported by a statement of the Supreme People's Court.Whilst accepting that in most contexts this would be reassuring, he argues that "it begsthe question of that Court's unquestioned lack of independence from the Chinesegovernment".Minister's first decision[144] In her letter notifying her first decision on surrender, the Minister said she hadasked herself whether the PRC had sufficiently assured her that the death penaltywould not be imposed, or if imposed, would not be carried out.[145] The Minister said:I am satisfied the PRC will not impose the death penalty given the assurancein relation to you and the previous experience of NZ with such an assurance,and so this discretionary ground is not made out.The PRC has given an assurance that the death penalty will not be imposed ifyou are found guilty, which appears to be in compliance with PRC law.I consider the assurance to be reliable, having had regard to the Othmanprinciples and your particular case. NZ has previously received an assurancenot to impose the death penalty from the PRC, which was honoured.The PRC is well aware of NZ's longstanding opposition to the death penalty.The PRC is aware that NZ (and potentially South Korea) will be monitoringyour case and that non-compliance with the death penalty assurance will haverepercussions for the bilateral relationship between the PRC and NZ(and potentially the PRC and South Korea), and the PRC's internationalreputation.[146] That decision reflected the material contained in the briefing. The officialsbriefed the Minister that on one previous occasion New Zealand had receivedassurances from the PRC the death penalty would not be imposed, and that assurancehad been complied with.115 She was advised that the determination of the SupremePeople's Court seemed to be in accordance with the Extradition Law of the PRC,115 We note that this previous assurance obtained by New Zealand was in the deportation context andnot extradition.which provides that assurances with regard to sentencing are subject to decision bythat Court.116 In addition, her officials outlined as a further relevant consideration thatMr Kim is an "ordinary criminal offender" and so not a member of any of the groupsknown to face a high risk of interference in the proceedings by the Government orChinese Communist Party.Judicial review decisions[147] The Judge was satisfied that the assurance was adequately specific and givenby the body with the authority to provide it.117 She said the only issue was whetherthe Minister had sufficient information to conclude it would be honoured.118 As tothat, Mr Ellis relied on the fact that the Ministry had obtained information from onlytwo other countries in connection with the PRC's compliance with assurances.[148] Mr Ellis also relied upon the information he had uncovered, that the PRC hadbreached a similar undertaking given to Ireland, and that Ireland had subsequentlystruggled to secure compliance with the undertaking. During the hearing ofthe first judicial review, Mr Ellis produced a report from the Irish Times whichdescribed a case in which the PRC had sought the assistance of Irish authorities tobring a group of Chinese men, suspected of having committed a murder in Dublin, tojustice in the PRC.119 Assurances were provided that none of the convicted would beexecuted. Nevertheless, the newspaper reported that one of the seven men had beensentenced to death. The newspaper also reported comments from a seniorIrish Government source that the PRC had broken the agreement reached and wouldnot engage with discussions in connection with that breach.[149] Following the hearing of the first application for judicial review,the respondents produced an affidavit from MFAT detailing inquiries made of Irelandin connection with this case.120 MFAT were advised by the Irish Department ofForeign Affairs that since the newspaper report, and following a period of engagement116 Extradition Law of the People's Republic of China (2000), art 50.117 First judicial review, above n 2, at [186].118 At [186].119 At [238].120 At [239].over the case between the Irish officials and the Chinese Embassy in Dublin,the sentence had been officially commuted to one of life imprisonment.121[150] In the first judicial review judgment, the Judge said that the informationthe Minister relied upon as to experience of compliance with assurances was limited,and the information in connection with the Irish case was potentially materiallyrelevant to the Minister's decision.122 She continued:123It does suggest that relying on information from just two countries about theirexperience with assurances from the PRC may be a misleading indicator ofwhether the assurances will be honoured in this case. It shows the importanceof taking active steps to ensure the assurances are kept.[151] The Judge concluded:124the information obtained about other countries' experience was limited.This is relevant to the weight the Minister could place on this information inbeing satisfied that the PRC would honour the assurances.[152] The Minister's view on this issue remained unchanged in her second decision;she was satisfied that she could rely upon the determination. On Mr Kim's secondapplication for judicial review, the Judge confirmed her view that it was reasonablyopen to the Minister to accept the assurances in relation to the imposition of the deathpenalty.125Analysis[153] We are satisfied there was sufficient information on the basis of whichthe Minister could reasonably conclude that the assurances as to the death penaltywould be complied with. Along with the information provided by the Country A andCountry B that assurances provided by the PRC had been complied with, the Ministerhad information that the PRC had previously provided a diplomatic assurance toNew Zealand regarding the imposition and carrying out of the death penalty, whichhad been complied with.121 At [239].122 At [240].123 At [240].124 At [241].125 Second judicial review, above n 4, at [125].[154] As to the information regarding the breach of assurances provided to Ireland,the Minister was entitled to take into account, as she did, that compliance withassurances would be monitored through trial and sentence. It will not therefore bea matter of chance whether a breach of this particular assurance would be detected, asit seems to have been in the case relied upon for Mr Kim. We are of the view that itwas reassuring that the breach of the assurance provided to Ireland was resolvedsatisfactorily when the Government of Ireland took this issue up with the PRC.[155] Accordingly we see no error in the Judge's conclusion that the Minister wasentitled to rely on the assurances given in respect of the death penalty. This ground ofappeal is dismissed.FIFTH GROUND OF APPEALDid the Minister fail to address the risk of extra-judicial killing?[156] Mr Ellis contends that the Judge was wrong to find no error in the Minister'sapproach to this issue. No assurance was provided that Mr Kim will not facean extrajudicial, summary or arbitrary killing outside of the legal process in breach ofart 6 of the ICCPR and s 8 of the New Zealand Bill of Rights Act.[157] Article 6 provides:1. Every human being has the inherent right to life. This right shall beprotected by law. No one shall be arbitrarily deprived of his life.2. In countries which have not abolished the death penalty, sentence of deathmay be imposed only for the most serious crimes in accordance with the lawin force at the time of the commission of the crime and not contrary tothe provisions of the present Covenant and to the Convention onthe Prevention and Punishment of the Crime of Genocide. This penalty canonly be carried out pursuant to a final judgement rendered by a competentcourt.[158] Mr Ellis also contends that the Judge was wrong to uphold the Minister'sdecision to treat the issue as one of torture, dealt with under those assurances.[159] Mr Ansley provided an affidavit for the second judicial review hearingattaching a report which claims to provide evidence of high levels of unlawful organextraction from Falun Gong.126 This is based on a number of threads of evidenceincluding abnormally high numbers of organs available for transplant in the PRC andindividual reports received. Mr Ellis submits that on the basis of this, the Minister hadbefore her evidence that somewhere between 60,000 to 100,000 people fromFalun Dafa (who are political detainees) have their organs harvested alive, which thenleads to their death. Mr Ansley also referred to evidence of Tibetans, Uighurs andhouse-Christians also being used for organ harvesting.[160] Mr Ellis argues that irrespective of any specific assurance that Mr Kim wouldnot be subject to extra-judicial killing, these state-sponsored gross violations ofhuman rights ought to have been sufficient for the Minister, and the Judge, to concludethat Mr Kim cannot be extradited.Relevant background[161] The Minister did not address, separate to the risk of torture, the risk ofextra-judicial killing.[162] In the first judicial review judgment, the Judge saw no error in that.127 She saidthat if Mr Kim was not personally at risk of torture it follows that he was not personallyat risk of death by torture of any of the particular kinds of torture that are used.128[163] She maintained the same view in the second judicial review judgment.129She also said that Mr Ansley's evidence concerning unexplained deaths of inmates aremore relevant the torture restriction on surrender than they are to the death penaltyrestriction.130126 David Kilgour, Ethan Gutmann and David Matas Bloody Harvest / The Slaughter: An update(22 June 2016).127 First judicial review, above n 2, at [64].128 At [64].129 Second judicial review, above n 4, at [66]–[67].130 At [123].Analysis[164] We accept the argument that the risk of extra-judicial killing is to be addressedseparately from the risk of torture. Article 6(1) of the ICCPR provides that "[n]o oneshall be arbitrarily deprived of his life." And the principal risk relied upon for Mr Kimwas death arising from organ extraction, not death caused by torture. The risk ofextra-judicial killing is factually and legally distinct in this case.[165] Nevertheless, we still see nothing in this point in terms of the personal risk forMr Kim. The evidence proffered by Mr Ellis on Mr Kim's behalf about organtransplanting did not show any risk for Mr Kim of extra-judicial killing above andbeyond that inherent in the risk of torture. The evidence relied upon shows thatunlawful organ extraction is targeted at specific groups and Mr Kim is not part of thosegroups.[166] We do consider however, that this information forms part of the overall humanrights situation, material to the preliminary question whether assurances should besought or relied upon.SIXTH GROUND OF APPEALDid the Minister apply an incorrect legal standard in determining whetherMr Kim' s right to a fair trial would be upheld?[167] The grounds of appeal relating to fair trial right were argued for Mr Kim byMr Keith.[168] Mr Keith contends that the Judge erred in finding no error of the Minister inapplying the "reasonable extent standard" in assessing whether Mr Kim was at risk ofbeing denied his right to a fair trial under the Chinese legal system. Rather, he submits,the Minister was obliged to consider whether Mr Kim was at a real risk of a trial thatwould constitute a "flagrant denial of justice".131131 See Othman (Abu Qatada) v United Kingdom, above n 55, at [259]–[260].Legal framework[169] It will be recalled that the PRC has signed but not ratified the ICCPR, and thatit has neither signed nor ratified the First Optional Protocol which provides forthe Human Rights Committee to receive and consider complaints from individualsclaiming to be victims of violations of rights set out in the ICCPR. Nevertheless,the Minister's decision under s 30 had to be consistent with New Zealand's obligationsunder the ICCPR.[170] Article 14 of the ICCPR provides:1. All persons shall be equal before the courts and tribunals.In the determination of any criminal charge against him, or of his rights andobligations in a suit at law, everyone shall be entitled to a fair and publichearing by a competent, independent and impartial tribunal established by law.The press and the public may be excluded from all or part of a trial for reasonsof morals, public order (ordre public) or national security in a democraticsociety, or when the interest of the private lives of the parties so requires, orto the extent strictly necessary in the opinion of the court in specialcircumstances where publicity would prejudice the interests of justice; but anyjudgement rendered in a criminal case or in a suit at law shall be made publicexcept where the interest of juvenile persons otherwise requires orthe proceedings concern matrimonial disputes or the guardianship of children.2. Everyone charged with a criminal offence shall have the right to bepresumed innocent until proved guilty according to law.3. In the determination of any criminal charge against him, everyone shall beentitled to the following minimum guarantees, in full equality:(a) To be informed promptly and in detail in a language which he understandsof the nature and cause of the charge against him;(b) To have adequate time and facilities for the preparation of his defence andto communicate with counsel of his own choosing;(c) To be tried without undue delay;(d) To be tried in his presence, and to defend himself in person or throughlegal assistance of his own choosing; to be informed, if he does not havelegal assistance, of this right; and to have legal assistance assigned to him, inany case where the interests of justice so require, and without payment by himin any such case if he does not have sufficient means to pay for it;(e) To examine, or have examined, the witnesses against him and to obtainthe attendance and examination of witnesses on his behalf under the sameconditions as witnesses against him;(f) To have the free assistance of an interpreter if he cannot understand orspeak the language used in court;(g) Not to be compelled to testify against himself or to confess guilt.[171] Relevant provisions under the New Zealand Bill of Rights Act are as follows:23 Rights of persons arrested or detained(1) Everyone who is arrested or who is detained under any enactment—(a) shall be informed at the time of the arrest or detention ofthe reason for it; and(b) shall have the right to consult and instruct a lawyer withoutdelay and to be informed of that right; and(c) shall have the right to have the validity of the arrest ordetention determined without delay by way of habeas corpusand to be released if the arrest or detention is not lawful.(4) Everyone who is—(a) arrested; or(b) detained under any enactment—for any offence or suspected offence shall have the right to refrainfrom making any statement and to be informed of that right.(5) Everyone deprived of liberty shall be treated with humanity and withrespect for the inherent dignity of the person.24 Rights of persons chargedEveryone who is charged with an offence—(a) shall be informed promptly and in detail of the nature andcause of the charge; and(c) shall have the right to consult and instruct a lawyer; and(d) shall have the right to adequate time and facilities to preparea defence; and25 Minimum standards of criminal procedureEveryone who is charged with an offence has, in relation to thedetermination of the charge, the following minimum rights:(a) the right to a fair and public hearing by an independent andimpartial court:(b) the right to be tried without undue delay:(c) the right to be presumed innocent until proved guiltyaccording to law:(d) the right not to be compelled to be a witness or to confessguilt:(e) the right to be present at the trial and to present a defence:(f) the right to examine the witnesses for the prosecution and toobtain the attendance and examination of witnesses forthe defence under the same conditions as the prosecution:[172] It is common ground that the Minister should not order Mr Kim's surrender ifhe would not have the following fair trial rights when surrendered:132(a) the right to a fair and public hearing by a competent, independent andimpartial tribunal;133(b) the right to be presumed innocent until proved guilty by law;134(c) the right not to be compelled to be a witness or to confess guilt;135(d) the right to examine witnesses;136(e) the right to be tried without undue delay;137 and(f) the right to a lawyer.138Submissions[173] Mr Keith argues that, acting on Crown advice, the then responsible Ministerdid not apply the correct legal test of whether Mr Kim is at a "real risk" of a trial thatwould constitute a flagrant denial of justice. Instead, the Minister sought to assesswhether such a trial would "to a reasonable extent, [accord] with the fundamentalprinciples of criminal justice reflected in article 14 of the [ICCPR]", which Mr Keithmaintains was in error.132 Extradition Act, s 30(3)(e).133 ICCPR, art 14(1); and New Zealand Bill of Rights Act, s 25(a).134 ICCPR, art 14(2); and New Zealand Bill of Rights Act, s 25(c).135 ICCPR, art 14(3)(g); and New Zealand Bill of Rights Act, s 25(d).136 ICCPR, art 14(3)(e); and New Zealand Bill of Rights Act, s 25(f).137 ICCPR, art 14(3)(c); and New Zealand Bill of Rights Act, s 25(b).138 ICCPR, art 14(3)(b) and (d); and New Zealand Bill of Rights Act, s 24(c).[174] In the first briefing paper for the Minister, Crown Law advised the Minister asfollows:Crown Law considers, and the Ministry and MFAT agree, that for presentpurposes the question you should ask yourself is:Am I satisfied on all the information available, includingthe assurances provided by the PRC, that Mr Kim will receive a trialin the PRC that, to a reasonable extent, accords with the fundamentalprinciples of criminal justice reflected in article 14 of the ICCPR?In answering this question, you need not apply the standards in article 14 asthey are applied in NZ. For example, the courts in the PRC do not appear tohave the constitutional independence from the state that would be required bythe doctrine of the separation of powers in NZ and other similar democracies.What you must determine is whether the differences are so significant thatMr Kim will not get a trial that, to a reasonable extent, accords withthe fundamental principles of criminal justice reflected in article 14.[175] As she was advised, the Minister applied the 'accords to a reasonable extent'test. The Judge was satisfied that the Minister did not err in doing so.139She considered that the Minister proceeded in a way that was beneficial to Mr Kimbecause she did not adopt the higher test of "flagrant denial of justice".140 The use ofthe word "reasonable" allowed for the possibility of some differences in approach andpotentially some irregularities, providing that they did not render the trial unfair.She said:141If surrender was to be declined on the basis of compliance with art 14, therewould need to be sufficient evidence that Mr Kim fair trial rights would notbe reasonably protected. That was the approach the Minister took.There was no error in her approach in this respect.Analysis[176] The parties agree that the inquiry for the Minister and for this Court, is whetherMr Kim is at a "real risk" of a trial that would constitute a flagrant denial of justice.139 First judicial review, above n 2, at [110]–[112]; and Second judicial review, above n 4, at [83].140 First judicial review, above n 2, at [112].141 At [112].[177] The concept of a flagrant denial of justice comes from jurisprudence inconnection with the European Convention. The European Court of Human Rights inOthman described it in the following way:142a trial which is manifestly contrary to the provisions of Article 6[of the Convention for the Protection of Human Rights and FundamentalFreedom] or the principles embodied therein A flagrant denial of justice goes beyond mere irregularities or lack ofsafeguards in the trial procedures such as might result in a breach of Article 6occurring within the Contracting State itself. What is required is a breach ofthe principles of fair trial guaranteed by Article 6 which is so fundamental asto amount to a nullification, or destruction of the very essence, of the rightguaranteed by that Article.[178] Counsel in this case referred to the test as a "very high" test. However we donot think that language of "high test" should be used, as it deflects from the criticalinquiry. We see some force in the observations of William Young J in Radhi v DistrictCourt at Manukau that the word "flagrant" may also tend to confuse, because"flagrant" is a word usually denoting high-handed, brazen or scandalous conduct.143Its use may suggest the applicant must show high-handed, brazen of scandalousconduct to make out a case that surrender should be refused on fair trial grounds.[179] We also have reservations as to the explanation of the test offered in Othman,that a "flagrant denial of justice" involves such a departure from standards so as toamount to a nullification or destruction of the right guaranteed by art 14 (in this case).It is true that, as discussed by this Court in Bujak v Minister of Justice, the thresholdpermits some degree of difference between countries' legal systems, appropriate inlight of the public interest in extradition.144 But the language of nullification ordestruction expresses the matter in such absolute terms that it errs on the side of settingthe threshold too high. We consider that the appropriate threshold is whether there isa real risk of a departure from the standard such as to deprive the defendant of a keybenefit of the right in question.142 Othman (Abu Qatada) v United Kingdom, above n 55, at [259]–[260]; endorsed by Harkins vUnited Kingdom [2017] ECHR 1182 (Grand Chamber) at [64]. See also R (Ullah) v SpecialAdjudicator [2004] UKHL 26, [2004] 2 AC 323 at [24].143 Radhi v District Court at Manukau [2017] NZSC 198, [2018] 1 NZLR 480 at [45].144 See Bujak v Minister of Justice [2009] NZCA 570 at [36]–[43].[180] "Real risk" does not mean proof on the balance of probabilities. It means a riskwhich is real and not merely fanciful; so that it may be established by something lessthan a 51 per cent probability. The prospect of unfairness may arise in respect of anindividual or categories of individual — for example, political dissidents or thosecharged with certain offences, or if the unfairness is systemic can arise for everyindividual.145 Once the person can show that there is a real risk of a trial that mightbe unfair in this sense, it is for the requesting state to "dispel any doubts" about thatrisk.146[181] We agree with the Judge that the test applied by the Minister probably favouredMr Kim. We say probably because there is something in Mr Keith's point thatthe word "reasonable" has no content unless it is attached to some other descriptor.The Minister erred in applying that test.[182] As a consequence of this judgment the Minister will have to revisit the decisionto surrender. When the Minister does so, the test as outlined at [179] above should beapplied.SEVENTH GROUND OF APPEALDid the Minister err in concluding that there was no risk of departure from fairtrial standards justifying refusal of surrender?[183] Mr Keith argues that Mr Kim had shown a real risk that the essence ofthe procedural and substantive protection contained in art 14 would be denied toMr Kim, and that the Judge erred in finding that the Minister could reasonablyconclude that the assurances met those concerns. He submits that Mr Kim had showndepartures from art 14 rights such as to constitute a negation of the essence ofthe following rights:(a) The right to a fair and public hearing by a competent, independent andimpartial tribunal.147145 Kapri v Lord Advocate [2013] UKSC 48, [2013] 1 WLR 2324; and Kapri v Her Majesty'sAdvocate (for the Republic of Albania) [2014] HCJAC 33.146 Othman (Abu Qatada) v United Kingdom, above n 55, at [261].147 ICCPR, art 14(1).(b) The right to be presumed innocent until proved guilty by law.148(c) The right not to be compelled to be a witness or to confess guilt.149(d) The right to examine witnesses.150(e) The right to a lawyer.151[184] Mr Keith argues that the Judge was wrong not to find error in the Minister'sapproach when the Minister did not squarely address the departures from fundamentalprinciples of justice which underlie art 14, and reached a view not reasonably open toher that the assurances provided met any kind of risk that Mr Kim would not receivea fair trial.[185] Secondly, Mr Keith submits that the Judge erred in finding that the departuresfrom fundamental principles were not systemic and structural, inevitably affecting allaccused in the criminal justice system and incapable of being addressed by assurances.She was wrong to find that the Minister could focus narrowly on the risk to Mr Kim.On the facts, that approach was not reasonably open to the Minister, and the Judgeerred in finding that it was.[186] As with other grounds, the respondents support the Judge's reasoning.[187] Before addressing these grounds of appeal, it is necessary first to set out somebackground to the PRC's criminal justice system.PRC's criminal justice system152[188] The criminal justice system in the PRC is essentially inquisitorial but hasincorporated an increasing number of adversarial components through amendments in1996 and 2012 to its Criminal Procedure Law. Prior to those amendments the law did148 Article 14(2).149 Article 14(3)(g).150 Article 14(3)(e).151 Article 14(3)(b).152 This material comes from the Ministry of Justice briefings to the Minister and the advice ofProfessor Fu. The basic structure of the PRC criminal justice system is not in dispute.not provide a right to be presumed innocent until proved guilty, a right not to becompelled to testify or confess guilt, and a right to challenge the evidence of a witness.[189] As we understand it, there are three component parts to the criminal justicesystem. The "public security organ", the police, have responsibility forthe investigation of crime. If the police consider the accused should be prosecuted,they send the case to the procuracy.153 The procuracy examines the case and assesseswhether the evidence is reliable and sufficient. It may also interrogate the accused.If the procuracy decides to prosecute it transfers all materials and evidence, includingthat favourable to the accused, to the court. If it considers more investigation isneeded, it may remand the case back to the police or conduct the investigation itself.[190] There is a hierarchy of procuratorates, with the Supreme People'sProcuratorate being the highest. Procuratorates at the higher levels direct the work ofthose at the lower levels. The Supreme People's Procuracy is responsible to theNational People's Congress (NPC) and its Standing Committee. The NationalPeople's Congress is the national legislature of the PRC. The Constitution of the PRCprovides for most of its power to be exercised on a day-to-day basis bythe Standing Committee of 150 members. It is the state organ for legal supervision,charged with investigating crimes committed by state functionaries (such as corruptionoffences), public prosecutions and supervising the application and enforcement of lawby other legal institutions (including the police and the courts).[191] The hierarchy of courts correspond to the hierarchy of procuracies withthe Supreme People's Court being the highest. The Supreme People's Court is alsoresponsible to the NPC and its Standing Committee. Judges are appointed andremoved by various committees of the People's Congress. Selection is on the basis ofability and political integrity.153 The terms "procuracy" and "procuratorate" both mean the office of a procurator (or prosecutor).(a) Right to a hearing before an independent and public tribunalInitial briefing to the Minister[192] The Ministry advised the Minister that although the Constitution of the PRCstates that procuratorates and the courts exercise their powers independently, "it is wellknown that there is political oversight in the PRC's criminal justice system".154The Ministry cited statements of the US Department of State and expert David Matasas authority for the proposition that the Communist Party's Law and PoliticsCommittee has the authority to review and influence court operations, although notingthat it is more likely to become involved in politically sensitive cases.155[193] The Ministry also noted a very high conviction rate — around 98 to99 per cent. However it considered the high conviction rate might be partiallyexplained by the following quote from a former judge:If the court really wants to acquit the defendant, the court's adjudicationcommittee gets the police and the procuratorate together to get thempsychologically prepared for what the court is thinking and why it thinks thatway. If the police are okay with it, the procuratorate usually withdrawsthe prosecution and there wouldn't be a verdict. Because if there is anacquittal, it means acknowledging that the police wrongly arrested someone,that the procuratorate wrongly indicted someone, and that there will be a needfor state compensation.Minister's first decision[194] Whilst the Minister accepted that the courts in the PRC are subject to a differentconstitutional structure than the courts in New Zealand, she was satisfied that Mr Kimwould receive a trial in the PRC that, to a reasonably extent, would accord withthe fundamental principles of justice reflected in art 14 of the ICCPR. She said:The standards in article 14 are applied differently in the PRC than in NZ.For example, the courts in the PRC do not appear to have the constitutionalindependence from the state that would be required by the doctrine ofthe separation of powers in NZ and other similar democracies. However, whatI must determine is whether you will get a trial that, to a reasonable extent,accords with the fundamental principles of criminal justice reflected in154 Referring to Freedom House "Freedom in the World: China" (2014) <freedomhouse.org>at F. Rule of Law; and Amnesty International "Briefing on China's 2013 Criminal Procedure Law:In line with International Standards?" (2013) <amnesty.org.nz> at 5.155 See US Department of State "China (Includes Tibet, Hong Kong, and Macau) 2013 Human RightsReport" (2014) <www.state.gov> at 14.article 14, as opposed to one which mirrors NZ's application of thoseprinciples.[195] The Minister noted that the Criminal Procedure Law, as originally enacted in1979, did not include a number of the internationally recognised fair trial protectionscontained in art 14 of the ICCPR. But commentators and the UN consider that 1996and 2012 reforms of the Criminal Procedure Law have addressed most of the fair trialdeficiencies. Whilst the UN and other commentators remained concerned aboutjudicial independence and potential state interference, she did not consider those risksprevented surrender in Mr Kim's case. First, the PRC had provided detailed andspecific assurances about the matters relating to Mr Kim's trial. Secondly, Mr Kim isan ordinary criminal suspect, so he is not at high-risk of political interference. Thirdly,New Zealand will be monitoring Mr Kim's case and compliance with fair trial rights.And finally, the prima facie case against Mr Kim appears to be relatively strong, whichmay decrease the risk of non-compliance with fair trial rights or state intervention.[196] The Minister was therefore satisfied that Mr Kim will receive a trial in the PRCthat, to a reasonable extent, accords with the fundamental principles of criminal justicereflected in art 14 of the ICCPR.Evidence for first judicial review[197] Mr Ansley provided evidence for the first judicial review hearing, expressinghis opinion that there is no such thing as a fair trial in the PRC — that the process ofproving guilt and arriving at an adjudication of guilt is so "fundamentally flawed,corrupt, and deficient, that there is no way of evaluating whether a convicted personis one of the guilty or whether he is an innocent victim of an inherently unfair process".[198] As to the independence of the judiciary, Mr Ansley's evidence is thatthe criminal justice system is subject to control by the Chinese Communist Party.He characterises criminal trials as theatre with no impact on the outcome, withwitnesses seldom seen or heard. Mr Ansley says that the judgment is not usuallyrendered by judges who have presided at the trial: "[t]hose who have heard the casedo not make the judgement; those who make the judgment have not heard the case."He cites as one of the ways in which political influence operates, that while a tribunalof three judges will hear a case, they only have the power to make a recommendationto the Judicial Committee. The Committee is the body that, in reality, decides the case:The Judicial Committee is a completely invisible group of "judges", meetingin a back room and making "judgments" on batches of cases collectively,without ever having heard the evidence in any of them.The real reason for the existence of the Judicial Committees has always beento facilitate the control of the courts by the Party, and to do itinvisiblyall the members of the Committee are Party members. But evenmore importantly, the driving force within the Committee is always the judgewho serves as Party Secretary within the court. Also, the President of the courtis always a member of the Committee and for historical reasons the Presidentis usually the least legally qualified of any judge in the court. In fact, veryoften the only credential the President holds is his Party membership.First judicial review[199] The Judge was satisfied that the Minister had considered the overall issue ofpolitical interference in the Chinese criminal justice system.156 She said that onthe material before the Minister there was no evidential basis for concluding that stateintervention was such that no criminal trial could be regarded as fair.157 The Judgehad regard to the evidence of Mr Ansley. While she acknowledged that the evidencesuggested that lack of judicial independence and potential state interference isa systemic issue, she saw it as significant that Mr Ansley did not saythat state intervention occurs in every case.158 Rather his concern was that the systemallows the state to intervene. The Minister was therefore not wrong to considerwhether it would occur in Mr Kim's case.159[200] The Judge considered that the Minister properly took into account the fact thatMr Kim was not a member of a high-risk group.160 The Minister was also advised that"the extradition dimension", referring to the monitoring of Mr Kim by New Zealand,156 First judicial review, above n 2, at [118] and [120].157 At [121].158 At [121].159 At [122].160 At [119]–[120].put Mr Kim in a different position from most other criminal suspects.161 The Judgesaid:162The Minister has therefore explained why she concluded there would becompliance with Mr Kim's right to a "fair and public hearing by a competent,independent and impartial tribunal" notwithstanding the position ofthe judiciary in the PRC and the political oversight to which it is subject.[201] The Judge noted that Mr Ansley's evidence on the involvement ofthe Judicial Committee was new material not before the Minister, but was notpersuaded it was significant.163 The Judge discounted Mr Ansley's assertion thatthe case would be decided by an invisible or faceless group of judges, the JudicialCommittee.164 She said her understanding was that a defendant could determine whothe members of the Judicial Committee were so that they are not "faceless".165[202] She also thought it unclear whether the evidence about the input ofthe Judicial Committee provided an accurate picture of the present situation, noting itcame from an article Mr Ansley had published in 2007.166 And she said, even onMr Ansley's evidence, the court which hears the case makes a recommendation tothe Judicial Committee.167 Following the meeting of the Judicial Committeea judgment is issued. Therefore, whatever the private input of the Committee behindclosed doors, a public judgment results. The Judge did not consider that Mr Ansley'sevidence on the topic was likely to have led the Minister to reach a differentconclusion.168[203] The Judge also addressed the assurance that the PRC "will, in its dealings withMr. Kim Kyung Yup, comply with applicable international legal obligations anddomestic requirements regarding fair trial".169 She referred to Mr Kim's argumentthat this assurance was meaningless as there were no "applicable international161 At [119].162 At [120].163 At [123].164 At [123]–[125].165 At [124].166 At [124].167 At [124].168 At [125].169 At [210].obligations" given that the PRC had not ratified the ICCPR.170 But she consideredthat the weight that could be placed upon the assurances depended upon the adequacyof the monitoring arrangements, evidence the PRC had previously complied withassurances, and whether there were adequate grounds for believing that the PRCwould honour assurances to New Zealand.171Minister's second decision[204] Prior to making her second decision the Minister received a further briefingfrom officials, which drew heavily on advice obtained from Professor Fu.Professor Fu said there was a combination of legal, political and cultural reasons forthe very high conviction rates in the PRC. Legally, China does not have a guilty-pleasystem and all defendants are found guilty through a full criminal trial. Culturally,the Chinese criminal process emphasises the ethos of mutual cooperation amongdifferent institutions. A not-guilty verdict is an open challenge to the prosecutorialand police authority and is used with caution. Many of the cases where a not guiltyverdict may be available are withdrawn by the prosecution at trial.Alternatively, the prosecution may be given "direct or subtle pressure so at tocompel'" a withdrawal. There is no data on these withdrawals, but a rough estimatewould be about five per cent of prosecution cases. He continued:Politically all of the above takes place in a larger circumstance that prioritizescrime control. The objectives of procedural protection of rights inthe criminal process, while having received significantly more attention inthe recent years, still pales in comparison with the objective of maintainingstability through punishing crime. The court is largely an integral part of thislarger system that is geared toward crime control.[205] Professor Fu agreed with Mr Ellis' contention in the first judicial review thatthe PRC, along with Japan and Korea, has a conviction rate of over 99 per cent.In comparison, the domestic conviction rate in New Zealand is 82.5 per cent(or 90.7 per cent if you include diversions and discharges without conviction).[206] As to Mr Ansley's evidence, the Ministry noted that he did not addressthe specifics of Mr Kim's case or the adequacy of the assurances. It said much of170 At [211].171 At [211].the material relied upon by Mr Ansley is not up to date: "Mr Ansley does not addressthe 2012 reforms to the [Criminal Procedure Law] and does not appear to have workedin the PRC for some time".[207] In her second decision, the Minister asked herself the same question of whethershe is satisfied, on all the available information, that Mr Kim will receive a fair trialin the PRC "that, to a reasonable extent, accords with the fundamental principles ofthe criminal justice system reflected in article 14". Although she acceptedthe evidence about the PRC's lack of judicial independence and potential stateinterference, the Minister remained satisfied that the risks identified by Mr Ellis andMr Ansley were not likely to eventuate in the particular circumstances of Mr Kim'scase. In reaching that conclusion, the Minister specifically referred to the additionalassurances obtained after the first judicial review.Second judicial review[208] The Judge characterised the evidence relied upon by Mr Kim as placingthe institutional structure of the judiciary at issue.172 It was open to the Minister toconclude that Mr Kim's trial was not at risk of state interference because of Mr Kim'sparticular circumstances. She noted that other courts had approached this issue byconsidering whether, despite a systemic issue in the receiving country, the countrysurrendering the individual can be satisfied the individual will receive a fair trial froma court that is subject to political interference.173 She referred to the decision ofScotland's High Court of Judiciary in Kapri v Her Majesty's Advocate(for the Republic of Albania) as an example of that approach.174[209] The Judge acknowledged reported comments allegedly made by the Presidentand Party Secretary of China's Supreme People's Court Party Group, in an address tothe National Conference of Courts' Presidents on 14 January 2017, that Westernideologies of judicial independence must be rejected and the road of Socialist Rule ofLaw with Chinese characteristics must be followed.175 The Judge said that those172 Second judicial review, above n 4, at [94].173 At [94].174 At [94]; referring to Kapri v Her Majesty's Advocate (for the Republic of Albania), above n 145,a case we discuss below.175 At [90].reported comments,176 along with Professor Fu's comments on the political factors atplay in the courts, gave her pause.177 Nevertheless, she said, it was Mr Kim'sparticular circumstances that were of importance.178[210] The Judge maintained her view that the critical factor was the assurances.179The further information obtained by the Minister following the first judgmentaddressed the deficiencies identified. The Judge concluded it was reasonably open tothe Minister to be satisfied the PRC would uphold the assurances.180Analysis[211] The essence of the right at issue here is the right to be tried before a tribunalthat decides the case on the evidence before it, free of political pressure to decidethe case other than on the basis of the law and those facts. We differ from the Judgeas to whether there is a real risk Mr Kim would receive a trial other than in accordancewith that standard. On the material before the Minister by the time of the seconddecision, it was not reasonably open to her, at least without further inquiry, to concludethe assurances provided met the fair trial concerns raised on Mr Kim's behalf inrespect of the lack of independence of the judiciary.[212] We were not referred to any evidence that contradicts Mr Ansley's account ofthe operation of the PRC's criminal justice system as it relates to the involvement ofthe Judicial Committee. Nor does it seem reasonable to regard those concerns, andothers he addresses, as out of date since information he provided was consistent withthe Ministry's own material. For example, the briefing provided to the Minister beforethe first decision contained the following statement:If the collegial panel [hearing the case] considers it difficult to make adecision, the president of the court may submit the case to the judicialcommittee for determination.176 These were comments reported in the media. The Judge did not have a transcript of them, norevidence as to context, matters relied upon for the respondents as to no weight should be attachedto the comments.177 Second judicial review, above n 4, at [94].178 At [94].179 At [95].180 At [95].[213] This evidence is echoed in the opinion provided to the Ministry byProfessor Fu. Professor Fu refers to the exclusion by the courts of confession evidenceobtained by torture as being "politically possible".[214] We are also concerned that the Minister was encouraged to discountMr Ansley's evidence on the basis that it did not address the specifics of Mr Kim'scase, the adequacy of the assurances and the effects of the 2012 reforms. Mr Ansleydid not address in detail the specifics of Mr Kim's case or the assurances because itwas his evidence that the nature of the PRC criminal justice system is such thata fair trial is not possible. And contrary to the Ministry's advice, Mr Ansley didaddress the impact of the 2012 reforms. His evidence was that things had notmaterially changed since those reforms.[215] While ultimately this issue is not determinative, we do detect differingtreatment of the evidence of Mr Ansley and the report provided by Professor Fu.For example, Mr Ansley's evidence is criticised on the basis that he has not recentlyworked in the PRC. But it is not clear on the material before us that Professor Fu hasever worked inside the PRC's criminal justice system. The Ministry criticisesthe currency of the research Mr Ansley uses to support his assertions, yet Professor Fudoes not refer to any published research or studies to support his assertions.[216] We also consider this case is distinguishable from Kapri v Her Majesty'sAdvocate (for the Republic of Albania), a case relied upon by the Judge.181 In Kaprithe issue was judicial corruption, which is by definition a failure of the system tooperate as it is designed. Moreover, Scotland's High Court of Justiciary concludedthat while there was a high level of perception in Albania that corruption existed inthe judicial system, the extent of corruption was entirely uncertain.182 The evidencerelied on by the applicant was so general and repetitive that it established:183At best for the appellant, there may have been undue influence of one sort oranother in criminal cases involving a single judge on matters of procedure.It may be more frequent than this, but there is simply no adequate materialupon which it could be held that there are substantial grounds for believing181 Kapri v Her Majesty's Advocate (for the Republic of Albania), above n 145.182 At [132].183 At [132].that it exists at such a level as will necessarily involve a flagrant denial ofjustice in all, or even most, cases.[217] The Judge was of course correct that the issue is whether Mr Kim will receivea fair trial. It is also true that Mr Kim's case is not a "political" one, such as a caseinvolving human rights protestors. But the point of Mr Ansley's evidence was thateverybody is at risk of not receiving a fair trial in the PRC in accordance withthe fundamental principles set out in art 14 for a number of reasons, including the lackof independence of the judiciary. We accept Mr Keith's argument that the evidencebefore the Minister supported the conclusion that political influence in general, andthe role of the Judicial Committee in particular, are pervasive in the PRC's criminaljustice system. This political influence prioritises social policy objectives overindividual procedural protections. The lack of independence of the judiciary issystemic. It is also structural in the sense that it is how the system is designed tooperate, rather than being the consequence of poorly controlled human behaviourundermining the intended operation of the system, which was the issue in Kapri.[218] While it is correct that the issue for the Minister was departure fromthe relevant standard in Mr Kim's case, the evidence before the Minister supportedthe conclusion that Mr Kim would not be tried before an independent tribunal.There was no evidence on which the Minister could reasonably conclude otherwise.We have no doubt that a trial before a tribunal subject to direct political influence byreason of the design of the system within which it operates would amount to adeparture from the relevant ICCPR standard, constituting a denial of justice.[219] Could the Minister reasonably conclude that the assurances met this concern?The only assurance provided of any substance on this point is that Mr Kim's case willbe dealt with in accordance with domestic law. That does not meet the concern.The system operates in a way which, on Professor Fu's own evidence, prioritisesstability and crime control over procedural rights and which enables a decision to bemade by a body other than the body that heard the case. The procedural rights do notalter the fundamental structure of the system. As we come to, those procedural rightsare largely discretionary and, as Professor Fu says, pale in comparison withthe objective of maintaining stability through punishing crime.[220] The assurances regarding compliance with international law provide littlecomfort, since the PRC has not ratified the ICCPR so that there are no"applicable international legal obligations".[221] In the context of a system of criminal justice subject to political control as wehave outlined, the assurances cannot reasonably be seen as providing reassurance thatMr Kim's case will be dealt with in some different way. We do not consider it wasreasonably open to the Minister to conclude, on the information before her,that the risk that Mr Kim would not be tried before an independent tribunal wasaddressed by these assurances. We stress that this view is based on the material beforethe Minister. We cannot exclude the possibility that further inquiry will show adifferent picture of the judiciary to that which emerges from the evidence and briefingmaterial to date. That inquiry would be directed to ascertaining the extent to whichthe judiciary is subject to political control, and the extent to which a body that did nothear the case could control or influence decisions of guilt or innocence.(b) Right to legal representation[222] We group together under this heading the right to present a defence, receivelegal assistance, to have adequate time and facilities to prepare a defence and toexamine witnesses.[223] Mr Keith argues that the Minister did not address adequately, or at all, verysubstantial gaps in necessary procedural protections for all accused in the PRC.He argues that the Minister and subsequently the Judge were wrong to put to one sidedefects as identified by Mr Ansley on the grounds that they were systemic issues nottied to Mr Kim, when the effect of Mr Ansley's evidence was that, because the systemoperated in this way, there was no such thing as a fair trial in the PRC. Mr Keithcontends that the Minister and the Judge were wrong to discount Mr Ansley's evidenceas out of date when there was no proper basis for that, and when both proceeded onthe mistaken assumption he had not addressed the 2012 reforms. Finally, Mr Keithargues that the Minister and the Judge failed to turn their minds to two critical defects:the imperilled position of defence counsel in the PRC; and the substantial proceduraldisadvantages caused by a lack of disclosure and an inability to examine witnesses.First briefing paper[224] In relation to the right to present a defence and to legal assistance (contained inart 14(3) of the ICCPR and ss 24(c), 24(f) and 25(e) of the New Zealand Bill ofRights Act), the Ministry advised that Mr Kim would be able to instruct a lawyerimmediately on his return. A defendant in custody is entitled to meet his lawyer, andthe Criminal Procedure Law provides that those meetings must not be monitored.184A meeting, if requested, must occur within 48 hours.185[225] The lawyer may apply to the procuratorate for disclosure by the prosecution ofevidence helpful to the defence.186 However, the Ministry recorded the view ofone commentator, David Matas, that the defence has no way of knowing whatinformation is available to enable such an application to be made. The Ministry notedthat the provision of disclosure in response to such an application is discretionary.[226] The Ministry also addressed the right to examine witnesses for the prosecutionand to obtain for the defence the attendance and examination of witnesses underthe same conditions as the prosecution (art 14(3)(e) of the ICCPR and s 25(f) ofthe New Zealand Bill of Rights Act). The officials advised the Minister that evidenceof witnesses is usually provided by formal written statement although the defendant'slawyer can request the court to instruct a witness to appear in court and give testimony.The 2012 reforms provided that a witness shall appear before the court ifthe prosecutor or defendant's lawyer has objections to the testimony, the testimonyhas a material impact on the case, and the people's court deems it necessary to askthe witness to appear before the court.187[227] The Ministry recorded concerns that aspects of the 1996 and 2012 reformswere not being followed in practice, citing as a recent example the mass detention ofsome 230 human rights lawyers and associates. The very high conviction rates werenoted in this regard.184 Criminal Procedure Law, art 37.185 Article 37.186 Article 39.187 Article 187.[228] However, with respect to Mr Kim's case, the Ministry again emphasised thatMr Kim is an "ordinary criminal offender". He is not a member of any ofthe well-known groups subject to high-risk of interference by the Government orCommunist Party in the judicial proceedings. It also said that Mr Kim's situation issignificantly different from that of other criminal suspects because of "the extraditiondimension". His situation will be monitored by New Zealand and possiblySouth Korea. The PRC authorities will know that. Any non-compliance is more likelyto be detected and will have repercussions for the bilateral relationship betweenthe PRC and New Zealand, and its international relationships. Further, the evidenceagainst Mr Kim appears relatively strong, reducing the risk of non-compliance withfair trial rights.Mr Ansley's evidence for first judicial review[229] As noted earlier, Mr Ansley's opinion is that a fair trial is not possible inthe PRC. He says that virtually all accused parties are found guilty. The system isheavily dependent on confession, and torture is regularly employed to extractconfessions. The Criminal Procedure Law is routinely ignored by investigators, policeand the courts. Defence lawyers are denied access to clients, harassed, beaten,intimidated and often incarcerated simply for being too vigorous in acting on behalfof their clients. He claims that the Chinese Communist Party has conducted a steadilyescalating campaign of terror against the criminal defence and human rights bars inChina. Article 306 of the Criminal Law of the People's Republic of China makes itan offence for defence counsel to falsify or suppress evidence, or to suborn perjury onthe part of a client. It is an offence that applies only to defence counsel. He claimsthat a "disturbingly large number of Chinese defence counsel are now incarcerated asa result of conviction under Article 306".[230] Mr Ansley said that detained people are not allowed access to a lawyer untilthe police and prosecutors have completed their investigation, by which timethe accused has usually confessed. Although the law requires that lawyers be able tomeet with their clients without monitoring, in practice meetings are monitored.Lawyers are not allowed to go beyond advising the person of the nature of the chargeand if they attempt to do so, they are stopped. Police, prosecutors and the judges meetto discuss the evidence, but defence counsel are excluded from these meetings andnever allowed to see anything in the file which might help their client. Mr Ansley saysthe lack of access to prosecution evidence for defence counsel means that counsel willnot know what the accused has confessed to. This creates a risk for defence counselif they lead evidence from their client. If that evidence differs from the client'sconfession, "the court normally interprets this as evidence that the lawyer has inducedthe accused to change his evidence and the lawyer is therefore convicted underArticle 306 for suborning perjury".[231] As to the ability to question witnesses, although art 59 of the CriminalProcedure Law stipulates that no accused may be convicted on the basis of witnessevidence unless the witness has attended in open court and has been cross-examinedby both sides, witnesses seldom do attend and accused are regularly convicted onthe basis of hearsay evidence.First judicial review[232] The Judge said that Mr Ansley's evidence relates to the general situation, whilethe briefing paper correctly advised the Minister to consider Mr Kim's specificsituation.188[233] With regards to access to lawyers, the Judge noted the seventh assurance:189Mr Kim Kyung Yup will be entitled to retain a lawyer licensed to practise lawin the PRC to defend him. He shall also have the right to dismiss that lawyerand retain another of his choosing. Mr. Kim Kyung Yup shall be entitled tomeet with his lawyer in private without being monitored. In addition, he hasthe right to receive legal aid according to Chinese law.[234] The Judge was satisfied that assurance addressed concerns that a detainedperson's consultation with his or her lawyer is monitored, and that the lawyer is notpermitted to go beyond advising the person of the nature of the charge.190188 First judicial review, above n 2, at [128].189 At [200].190 At [203].Minister's second decision[235] We have outlined the relevant parts of the Ministry's second briefing andSecond Ministerial decision above.Second judicial review[236] The Judge acknowledged that the assurances did not provide for a lawyer to bepresent during all pre-trial interrogations.191 However, art 14 does not provide for this.The Judge considered that it was not for the court to question what other assurancescould have been sought, but rather whether the Minister could be satisfied thatthe assurances obtained protected Mr Kim's rights to legal representation.192The Judge considered that the Minister took into account relevant considerations indeciding Mr Kim's fair trial rights would be protected despite the absence of a lawyerduring interrogations.193 No issue was found with the Minister's second decision.Analysis[237] The Ministry's briefing material identified concerns amongst commentatorsthat reforms to the Criminal Procedure Law designed to address proceduraldeficiencies were not being consistently or fully implemented. It was open tothe Minister, to accept the assurances that those protections would be afforded toMr Kim in compliance with domestic law. But the briefing material also identifiedfeatures of the operation of the system which should have been, but were not,addressed by the Minister before the decision to surrender was made. The issues raisedin the briefing paper were given further substance by the evidence of Mr Ansley.These concerns are not addressed, or not adequately addressed by the assurances.[238] The right to prepare and present a defence requires that the accused and hisrepresentatives understand the case they will have to meet. Mr Ansley's account is ofa system in which the prosecution, police and judges have access to the evidence wellin advance of the defence. The Ministry noted the existence of procedural rulesallowing the defence to apply for disclosure of evidence held by the prosecution191 Second judicial review, above n 4, at [107].192 At [111].193 At [112].helpful to their case. But it also recorded David Matas' view that the right is difficultto exercise when the defence does not know what evidence the prosecution holds andwhen the grant of the application for disclosure is discretionary. There wasno evidence as to how that discretion is exercised, a relevant inquiry given the materialjust traversed as to the lack of independence of the judiciary. We consider thatthe Minister could have, but did not, seek specific assurances regarding the timing andcontent of disclosure of the case to Mr Kim.[239] More troubling is the position of the defence bar in the PRC. Defence counselmust be able to honestly and responsibly represent an accused person without fear ofrepercussion, if the procedural right is to operate in accordance with its purpose.However, the Ministry's briefing contained sufficient material that at least requiredfurther inquiry as to the position of the defence bar in the PRC before a decision tosurrender could be made. The Ministry referred to the rounding up of lawyersinvolved in human rights cases. Mr Ansley's evidence provided further detail which,we consider, could not simply be ignored. Further inquiry was needed as to the impactof the art 306 offence, an offence for defence counsel but not prosecution. Does ithave, as Mr Ansley claims, a chilling effect on counsel's representation of an accused?If the defence bar does operate in an environment where they fear prosecution for theirrepresentation of their client, we have no doubt that would have the effect of deprivingdefendants of the benefit of legal representation.[240] This issue cannot be dismissed on the basis that it is a systemic issue and doesnot necessarily relate to Mr Kim's case. The point being made for Mr Kim is that thisis the system in which all defence counsel operates. Assurances cannot addressthe jeopardy all counsel face by virtue of the provisions of art 306, and in particularthe culture of fear that creates.[241] The evidence as to the ability to examine witnesses also suggests that the normin the PRC is that witnesses do not appear, and so will not be available forcross-examination. Professor Fu put the matter thus:A trial is not only a judge-led event with lawyers playing a relatively minorrole, but also relies extensively on documents, rendering a trial virtually a trialby affidavits. As it happens, few witnesses testify in courts in China.[242] This may be the product of the fact that the procedural right to examinewitnesses depends upon the making of an application, which a judge has a discretionwhether or not to grant. It may be a cultural phenomenon. However, the evidence thatwitnesses seldom appear suggests further inquiry is justified. When Mr Kim's case isre-considered by the Minister, we would expect there to be closer consideration as tohow the procedural right to examine witnesses operates in practice, and whether thereis in substance a right for the accused to examine witnesses. We also expectconsideration to be given to whether a specific assurance can be provided to ensurewitnesses will be available for cross-examination.[243] We consider that each of these issues requires further investigation: disclosureof the case against the defendant, the status of the defence bar, and the right to examinewitnesses for the prosecution. The issues of disclosure and examination of witnessesshould have been the subject of specific assurances. On the material beforethe Minister it was not open to her to conclude that the assurances met the fair trialconcerns in connection with these rights under the ICCPR.(c) Right not to be compelled to testify or confess guiltFirst briefing paper[244] In relation to the right not to be compelled to testify or confess guilt,(under art 14(3)(g) of the ICCPR and s 25(d) of the New Zealand Bill of Rights Act),the Ministry referred to art 50 of the Criminal Procedure Law, which since 2012 hasprovided that "Judges, procuratorial personnel and investigators are strictlyprohibited from forcing anyone to provide evidence proving his/her own guilt".[245] However, the Ministry noted that Amnesty International and Human RightsWatch questioned the effectiveness of the new provision because art 118 ofthe Criminal Procedure Law remained unchanged. That article states that"[t]he criminal suspect shall answer the investigators' questions truthfully, but he shallhave the right to refuse to answer any questions that are irrelevant to the case".Amnesty International and Human Rights Watch considered the effect of the provisionwas that the defendant must answer a relevant question truthfully. Nevertheless,the Ministry advised the Minister that when asked, Chinese Officials said thata defendant has a right to refuse to answer a question and there are no adverseconsequences for doing so.First judicial review[246] The Judge said that the inability to have a lawyer present during interrogationsdiminished the protection the assurances provided against pre-trial torture orill-treatment to obtain a confession.194 She continued:195It is also contrary to what is well established in our criminal justice systemthat an accused person may have their lawyer present for anypolice questioning if they wish to do so. This ensures an accused personunderstands their rights "chief among which is his right to silence".[247] As previously noted, in allowing the judicial review, the Judge found thatthe Minister had failed to explicitly consider whether the assurances adequatelyprotected Mr Kim from ill-treatment and his right to silence during pre-trialinterrogations, when the assurances do not provide for Mr Kim to have the right toa lawyer present for all pre-trial interrogations.196 While the assurances provided forrecording of interrogations, the Minister had not specifically addressed whether thiswas an adequate substitute for the presence of a lawyer in light of the power exertedby public security officers, and when the presence of a lawyer during policequestioning is a well-established right in this country.Briefing before second decision[248] The Minister was provided with advice from Professor Fu as to whetherMr Kim was required to make a statement about his involvement in the alleged crime.Professor Fu said that the art 118 obligation was qualified by the following:(a) Article 12; which provides "[n]o person shall be found guilty withoutbeing judged so by the people's court according to law."194 First judicial review, above n 2, at [203].195 At [203] (footnotes omitted).196 At [260].(b) Article 49; which provides that the burden to prove guilt rests onthe prosecution.(c) Article 53; which provides that the prosecution must produce sufficient,effective and lawfully obtained evidence to prove guilt beyondreasonable doubt.(d) Articles 56 to 58; which provides that the Court is duty bound toexclude evidence unlawfully obtained.(e) Article 53; which provides that confession is not sufficient fora conviction and a court may convict without a confession statement.[249] The Professor concluded that art 118 is not consequential in the sense thatrefusal to answer questions does not constitute a crime and is not an aggravating factorin sentencing.[250] As earlier noted, Professor Fu was asked but did not address the risk thatrecordings of interrogations would be selective or could be tampered with in someway.[251] In the briefing paper the Ministry again repeated the view that the greatest riskof torture and ill-treatment in the PRC is immediately after arrest, when the suspect isdetained in the police station. The Ministry however considered that would not applyto Mr Kim who will be held in custody in a detention centre. It advised the Ministerthat Mr Kim will be in a different category to most who are detained and questioned,because Mr Kim already has detailed knowledge of the case against him and,as a result of the current proceedings, will also know that there are no consequencesin PRC law if he refuses to answer questions. Nevertheless, the Ministry advisedthe Minister she would have to weigh that Mr Kim would not have a lawyer presentwith him to remind him of his rights when he is being questioned.Minister's second decision[252] The Minister addressed this issue in short order. She said that althoughMr Kim would not have a lawyer present during interrogations, there are no legalconsequences under PRC law if Mr Kim fails to answer the questions.Second judicial review[253] The Judge noted that Mr Kim will have access to his lawyer and toNew Zealand representatives before and after he is interrogated. Moreover,New Zealand will receive recordings of interrogation within 48 hours ofthe interrogation. On that basis the Judge was satisfied that it was open to the Ministerto conclude these would adequately protect Mr Kim's fair trial rights.Analysis[254] We agree that the Minister could place some reliance upon the recording ofthe interrogations, although that is subject to our comments above in connection withthe issue of torture — that those who torture can be expected to be sure that tortureand its aftermath is not detected by such monitoring systems as there are, and thatthe recording of interrogations gives no comfort as to what happens outside the formalinterrogation.[255] But even were the monitoring of the interrogations effective, we do not thinkthat this meets the concern that Mr Kim will be questioned in the absence of counsel.As Professor Fu notes, the questioning could extend over a period of months. And asis common ground, Mr Kim is obliged under the Criminal Procedure Law to answerquestions relevant to the inquiry. It may be that although legally obliged to answer hewill not face legal consequences for failing to do so, a fact of which he is now aware.But such legal niceties are very likely to be lost sight of within the human dynamic ofan interrogation, especially when that interrogation may extend on and off over aperiod of months.[256] In our legal system, the right to legal representation is seen as a necessaryincident of the right to silence. We accept that it is conceivable that the right not to becompelled to confess guilt can be secured in other ways. But here, given the provisionsof art 118, we do not consider that access to a lawyer before and after interrogation,and even the filming of the interrogation, is sufficient for this purpose. We are satisfiedthat the Minister should require an assurance that Mr Kim has the opportunity to havea legal representative present during interrogation. There is also an issue as to whothat legal representative should be, give the information as to pressures brought to bearupon the legal profession in the PRC. That is another matter the Minister will have toaddress.Conclusion[257] Accordingly, for the reasons set out above, we are satisfied that the Judge erredin finding no reviewable error in the Minister's decision when she concluded therewas no risk of departure from the fair trial standards justifying refusal of surrender.EIGHTH GROUND OF APPEALDid the Minister err in making the decision to surrender Mr Kimnotwithstanding the absence of assurance addressing the risk of disproportionatepunishment?Relevant background[258] It is argued that a whole life sentence of imprisonment for Mr Kim would bedisproportionate and cruel, yet that is the likely sentence if he is convicted. It is alsoargued for Mr Kim that the Judge erred in finding no reviewable error by the Ministernotwithstanding also finding a risk that Mr Kim might receive no credit for time spentin custody in New Zealand.197[259] The issue of whether a whole of life sentence of imprisonment is cruel ordisproportionate does not seem to have been argued in the High Court in the firstjudicial review. The issue of credit for time spent in custody prior to trial was howeverbefore the Judge in this proceeding.197 Second judicial review, above n 4, at [144]–[153].[260] At the second judicial review hearing, the Judge asked counsel whetherthe five years that Mr Kim had spent in custody in New Zealand would be taken intoaccount in the PRC.198 Counsel for the respondents undertook inquiries of Chineseofficials and provided an updating memorandum to the Court. The Judge summarisedthe effect of that memorandum, which we set out below:[146] In summary, if convicted of intentional homicide Mr Kim may besentenced to life imprisonment or a fixed term of imprisonment(given the assurance the death penalty will not be imposed). If lifeimprisonment is imposed, the time spent detained in New Zealand will not berelevant because there is no parole in China for intentional homicide. It may,however, be relevant to the choice between a determinate sentence andlife imprisonment, or to the length of a determinate sentence if a determinatesentence is imposed. The respondents submit that, because Mr Kim'sdetention in New Zealand may be taken into account as a factor for imposinga lighter punishment, his time in custody in this country will not result ina disproportionately severe sentence.[261] The Judge was troubled by the fact that there is no guarantee that the five yearsMr Kim has spent in custody will be taken into account in sentencing him if he issurrendered and convicted.199 She noted the Minister had not been asked to considerthis matter when she gave her decision, as it had not been raised by Mr Kim atan earlier point.200 Nevertheless, the Judge was satisfied that surrender would not beunjust or oppressive because MFAT had committed to monitoring Mr Kim's case, andwould be able to ensure that if he was convicted the period of Mr Kim's detention inNew Zealand is before the Supreme People's Court. The PRC's law allows for timespent in pre-trial detention to be taken into account.201[262] On appeal Ms Todd, for the respondents, accepts that since Mr Kim is chargedwith intentional homicide, that could attract a sentence of life imprisonment or a fixedterm of imprisonment (given the assurances that the death penalty would not beimposed). She argues that a whole of life sentence is not disproportionately severefor an offence of this nature.198 At [144].199 At [149].200 At [150].201 At [152].[263] As to the issue of credit for pre-trial detention, she submits that since timeserved may be considered by the sentencing court as part of the sentencing discretion,the resulting sentence of imprisonment would not be grossly disproportionate even ifno account is taken of that time. It is argued that the speculative risk that a sentencingcourt may not credit Mr Kim for time spent in custody in New Zealand cannot renderthe surrender decision unlawful on the basis there is a real risk of severely degradingtreatment or punishment.Analysis[264] The Judge considered the issue of sentencing credit for pre-trial detention asrelevant to whether it would be unjust or oppressive to order Mr Kim's surrender unders 8(1)(c) (because of the passage of time since the alleged offence was committed andhaving regard to all the circumstances of the case), or s 30(3)(e), (because of any otherreason the Minister considers the person should not be surrendered) ofthe Extradition Act.[265] We accept the respondents' submission that this issue is best addressed unders 30(3)(e) in that the Minister was required to exercise her discretion in a mannerconsistent with New Zealand's international obligations. But in any case, whicheverground this is analysed under, it does not impact upon the basic issue for the Ministeror the Court. The relevant international covenant is art 7 of the ICCPR "[n]o-one shallbe subjected to torture or to cruel, inhuman or degrading treatment or punishment."In New Zealand that right is encapsulated in s 9 of the New Zealand Bill of RightsAct, which reads "[e]veryone has the right not to be subjected to torture or to cruel,degrading, or disproportionately severe treatment or punishment."[266] The question is, is it disproportionately severe punishment, or cruel ordegrading punishment if there is no absolute requirement that time spent in custodyprior to conviction be treated as time served on any definite term of imprisonmentimposed? We formulate the issue this way since, on the material available, there isundoubtedly a discretion to take the five years into account on sentence.202202 Criminal Law, arts 61–63 and 232.[267] We consider that it would be a disproportionately severe punishment shouldtime already spent in custody not be taken into account when fixing a finite sentence.That is simply a matter of sentencing methodology. It seems to us reasonable to seekan assurance on the point when the time at issue is five years. Officials from the PRCadvised the Judge that in extradition treaties the PRC had concluded with othercountries, there are provisions expressly requiring the length of time served in custodyby the person extradited to be deducted from the time of imprisonment in the PRC.203We consider the Minister should have sought an assurance on this point.[268] As to the other ground advanced on appeal, it would be fair to say thatthe argument that the imposition of a whole of life sentence of imprisonment withoutparole would be in breach of art 7 is only raised in passing in the written submissions.We were not referred to any evidence as to whether or not a sentence oflife imprisonment without parole in the PRC is as a matter of fact law and factirreducible; there may be rights of commutation contained in Chinese legislation.In the absence of a proper evidential basis for the argument, we do not propose toaddress it.NINTH GROUND OF APPEALDid the Minister err in relying on advice from PRC officials as to Mr Kim's accessto mental health care in custody in the PRC?[269] Mr Kim has been diagnosed with some mental health issues. It is argued forMr Kim that the Minister could not reasonably rely upon advice from PRC officials asto Mr Kim's access to mental health services when access is not the subject of anyassurance and when the provision for mentally ill prisoners is strongly criticised inmaterial available to the Minister.[270] Beyond making this submission, counsel for Mr Kim provided no furtherassistance on this point. We do not therefore propose to address this ground of appealfurther.203 Second judicial review, above n 4, at [145].SUMMARY OF CONCLUSIONS[271] At [10]–[21] of this judgment we set out the legal framework and proceduralsteps which must be taken when an application is made to surrender a person residentin New Zealand to stand trial for a crime they are alleged to have committed in anothercountry.[272] As noted at [11], under this framework Parliament has entrusted the Minister(not the courts) to make the final decision as to whether or not the person should besurrendered. However, the power to make that decision, which is the subject of thisreview application, is constrained by mandatory and discretionary restrictions.These restrictions derive from fundamental principles and rights contained withinvarious international covenants ratified by New Zealand which also underlie, to someextent, the rights and freedoms contained within the New Zealand Bill of Rights Act.All parties in this matter have proceeded on the basis that there are good grounds forconcern as to the observance and protection of human rights in the PRC.[273] On judicial review, the Court is required to ensure the Minister's decision wasguided by a correct understanding of the law, was reached with sufficient evidence,and was fully and accurately reasoned on the basis of the evidence before her. We haveapplied heightened scrutiny to the Minister's decision as the standard of judicialreview. This is because of the importance of the rights alleged to be at risk. Mr Kimhas argued that if he is surrendered to the PRC he will be denied the most fundamentalhuman rights; the right to be free from torture and the right to a fair trial.[274] The concerns we have identified are wide-ranging. Some of the matters wehave identified raise serious issues as to whether a decision to surrender Mr Kim couldbe made in a manner which is compliant with New Zealand's international obligations.We have identified the difficulty that exists in obtaining assurances adequate to meetthe risk of torture in a country where torture is illegal yet remains widespread becauseof cultural and systemic features of the PRC criminal justice system. Other issues maybe still more difficult to address: the existence of direct political influence inthe criminal justice system and the evidence of harassment, and even persecution,of criminal defence lawyers. We do not exclude the possibility however that furtherinquiry may produce information on these matters of which we are unaware, andwhich show a different picture of the PRC criminal justice system.[275] Applying this standard of review of the Minister's decision, we have found thatthe Judge erred in some respects in refusing Mr Kim's application for judicial review,but not in others. We summarise our conclusions as follows:First ground — diplomatic assurances(a) The Judge did not err in finding that it was open to the Minister to seekdiplomatic assurances to meet the risk of torture. New Zealand'sinternational obligations provide no absolute prohibition on relying onassurances as relevant to an assessment of the risk of torture.(b) The Judge correctly found that before relying upon assurances,the Minister was required to address the preliminary question, whetherthe general human rights situation in the PRC was such that assurancesshould be sought. The reason for addressing this issue is that such aninquiry may reveal whether the value of human rights is recognised inthe requesting state, and whether the rule of law as it exists in that stateis sufficient to secure those rights to the person the subject ofthe request. However, we consider that the Judge erred in concludingthat the Minister did address that preliminary question. The Ministerreferred to the "general situation" in the PRC but only with regards totorture and only as part of her reasoning as to the risk of torture facedby Mr Kim. The Minister did not address as a separate and preliminaryquestion whether the human rights situation in the PRC more generallyis such that assurances should not be sought or accepted.Second ground — irrelevant considerations(c) The Judge did not err in rejecting an argument that the Minister tookinto account an irrelevant consideration, namely helping the PRCestablish credibility in the international community. The briefingsprovided to the Minister did not put the matter on that basis. Rather,officials highlighted that the PRC would be motivated to honour itsassurances because of the serious consequences for the bilateralrelationship as well as the PRC's international reputation shouldthe assurances not be honoured. This material was clearly relevant tothe Minister's assessment of the likelihood of whether the PRC wouldcomply with its undertakings.Third ground — torture(d) The Judge was correct to conclude that it was relevant for the Ministerto ascertain whether Mr Kim was in one of the classes of people athigh risk of torture in the PRC. However, the Judge erred in concludingthat on the material before the Minister it was open to her to find thatMr Kim, as a murder accused, is not at high-risk. Relevant evidenceasserting that murder accused were at a high-risk of torture could notreasonably be put to one side and no evidence before the Minister wentso far as to conclude that murder accused were not at a high-risk oftorture.(e) The Judge erred in upholding the Minister's reliance on the fact thatMr Kim could be tried in Shanghai, the stage of the investigation, andthe strength of the case against Mr Kim, as reducing the risk of torture.There was insufficient evidence for treating those factors as reducingthe risk of torture in this case.(f) The Judge erred in failing to identify the following deficiency inthe Minister's consideration of the adequacy of the assurances againsttorture. The Minister erred in failing to address how the assurances(which depended upon opportunities being created for Mr Kim andothers to report torture, and upon monitoring) could protect againsttorture when:(i) torture is already against the law, yet persists;(ii) the practice of torture in the PRC is concealed, and its use canbe difficult to detect;(iii) videotaping of interrogations is selective and torture oftenoccurs outside the recorded session;(iv) evidence obtained by torture is frequently admitted in court; and(v) there are substantial disincentives for anyone, includingthe detained person, reporting the practice of torture.Fourth ground — death penalty(g) The Judge did not err in upholding the Minister's reliance uponthe assurance received that Mr Kim would not be sentenced to death.The Minister obtained evidence of the PRC's previous compliance withsimilar assurances from New Zealand (in the context of deportation)and other countries.Fifth ground — extra-judicial killings(h) The Judge did not err in upholding the Minister's approach to the riskof extra-judicial killings. However, the material provided for Mr Kimin respect of extra-judicial killing, while not bearing on the risk for him,is nevertheless relevant to the preliminary question identified at[275](b)] above; whether, in light of the general human rights situation,assurances should be sought or relied upon in the case of Mr Kim.Sixth ground — legal standard(i) The Judge erred in finding the Minister applied the correct legal test todetermining whether the risk to Mr Kim's right to a fair trial was suchthat he should not be surrendered. The inquiry for the Minister iswhether Mr Kim is at a real and not merely fanciful risk of a departurefrom the standard such as to deprive him of a key benefit of a proceduralright under the ICCPR, which are procedural rights designed to securethe right to a fair trial. When revisiting the decision whether or not tosurrender Mr Kim, the Minister should apply the test as articulated at[179] above.Seventh ground — fair trial(j) The Judge erred in finding it was reasonably open to the Minister to besatisfied that the assurances met the risk that Mr Kim would not receivea fair trial if surrendered to the PRC. We have identified the followingissues in connection with the following fair trial rights that were notadequately addressed by the assurances:(i) The right to a hearing before an independent panel or publictribunal: Mr Kim has a right to be tried before a tribunal thatdecides cases on the evidence before it and free from politicalpressure. There was material before the Minister to suggest thatpolitical influence is pervasive in the PRC's criminal justicesystem and this is how the system is designed to work.There was also material to suggest that the political influenceprioritises social policy objectives over individual proceduralprotections.(ii) The right to legal representation, including the right to presenta defence, receive legal assistance, adequately prepare adefence and to examine witnesses: there were a number issuesin connection with this right including the discretionary natureof disclosure to the defence and the fact that witnesses forthe prosecution rarely give evidence with trial mostly beingconducted on the papers. More troubling is the position ofthe defence bar in the PRC. Defence counsel must be able tohonestly and responsibly represent an accused person withoutfear of repercussion if the procedural right is to operate inaccordance with its purpose. There was material beforethe Minister to suggest that defence counsel operate inan environment in which they fear persecution for theirrepresentation of their client.(iii) The right not to be compelled to testify or confess guilt:there was material before the Minister to suggest that Mr Kimcould be interrogated for a period of months in the absence ofa lawyer.Eighth ground — disproportionate punishment(k) The Judge erred in finding the Minister made no error in failing to seeka specific assurance that the five years spent in custody in New Zealandwould be deducted from any finite sentence of imprisonment inthe PRC. As a matter of sentencing methodology, and consideringNew Zealand's international obligations, to not account for the timeMr Kim spent in custody would lead to a disproportionately severepunishment.Ninth ground — access to mental health care(l) We do not consider it appropriate to address the issue of Mr Kim'saccess to mental health services on the basis of the material beforethe Court.RESULT[276] We therefore allow the appeal.[277] The Minister's decision to surrender Mr Kim under s 30 of the Extradition Actis quashed.[278] The Minister of Justice must reconsider the issue of Mr Kim's surrender.In particular, the Minister should address the following matters:(a) Whether the general human rights situation in the PRC suggests thatthe value of the human rights recognised under the ICCPRand the Convention against Torture are not understood and/or valued,and further, if they are, whether the rule of law in the PRC is sufficientto secure those rights.(b) The Minister is to make further inquiry as to whether murder accusedare at high-risk, or higher risk, than the notional ordinary criminal.(c) The Minister should not treat the fact that Mr Kim will be tried inShanghai, the stage of the investigation, or the strength of the caseagainst Mr Kim as reducing the risk of torture, unless further inquiriesprovide a sufficient evidential basis for proceeding on that basis.(d) In assessing the effectiveness of the assurances to address the risk oftorture, the Minister must address such evidence as there is that:(i) torture is already against the law, yet persists;(ii) the evidence is that practice of torture in the PRC is concealedand that its use can be difficult to detect;(iii) videotaping of interrogations is selective and torture oftenoccurs outside the recorded sessions;(iv) evidence obtained by torture is regularly admitted in court; and(v) there are substantial disincentives for anyone, includingthe detained person, reporting the practice of torture.(e) When addressing the issue of the risk that Mr Kim will not receive afair trial in the PRC should he be surrendered, the Minister should:(i) seek further information in connection with the extent to whichthe judiciary is subject to political control, and the extent towhich tribunals that did not hear persons, or groups, or tribunalsthat did not hear the case, control or influence decisions of guiltor innocence;(ii) seek further information as to the position of the defence bar inthe PRC, the right the defence has to disclosure of the case to bemet, and the right to examine witnesses; and(iii) seek further assurances that Mr Kim will be entitled todisclosure of the case against him (detailed as to timing andcontent), that he will have the right, through counsel, to questionall witnesses, and the right to the presence of effective defencecounsel during all interrogation.(f) The Minister should address the risk that Mr Kim will be sentenced toa finite term of imprisonment and receive no credit for time alreadyserved in New Zealand. Relevant to consideration of this issue will beany assurances the Minister is able to obtain in relation to this.COSTS[279] Mr Kim has been successful on this appeal. Accordingly, the respondents arejointly and severally liable to pay the appellant one set of costs for a standard appealon a band B basis and usual disbursements. We certify for second counsel.[280] Costs in the High Court are to be dealt with by that Court having regard to thisjudgment.Solicitors:Marshall Bird & Curtis, Auckland for AppellantCrown Law Office, Wellington for Respondents