MAYTHEM KAMIL RADHI v THE DISTRICT COURT AT MANUKAU [2017] NZSC 198 [21 December 2017]

MAYTHEM KAMIL RADHI v THE DISTRICT COURT AT MANUKAU [2017] NZSC 198[21 December 2017]NOTE: COURT OF APPEAL ORDER PROHIBITING PUBLICATION OFNAME OR IDENTIFYING PARTICULARS OF MR RADHI'S WIFE ANDCHILDREN REMAINS IN FORCE.IN THE SUPREME COURT OF NEW ZEALANDSC 57/2017[2017] NZSC 198BETWEEN MAYTHEM KAMIL RADHIAppellantAND THE DISTRICT COURT AT MANUKAUFirst RespondentTHE COMMONWEALTH OFAUSTRALIASecond RespondentHearing: 11 October 2017 and 22 November 2017Court: William Young, Glazebrook, OʼRegan, Ellen France andMcGrath JJCounsel: R M Mansfield for AppellantD L Harris abiding for First RespondentM J Lillico and R K Thomson for Second RespondentJudgment: 21 December 2017JUDGMENT OF THE COURTA The appeal is allowed.B The appellant's case is referred to the Minister of Justicepursuant to s 48(4)(a)(ii) of the Extradition Act 1999.C Costs are reserved.____________________________________________________________________REASONSWilliam Young J [1]Glazebrook and O'Regan JJ [60]Ellen France and McGrath JJ [65]WILLIAM YOUNG JTable of ContentsPara No.The appeal [1]The factual context [3]Legislative context [15]Procedural history of the case [28]The judgment of the Court of Appeal [35]My approach [37]No consideration was given to Mr Radhi's position should he beunable to obtain a visa to return to New Zealand [37]Section 22 of the New Zealand Bill of Rights Act 1990 and art 9.1 ofthe International Covenant on Civil and Political Rights [39]Is the susceptibility of Mr Radhi to indefinite administrativedetention a "compelling or extraordinary" circumstance "of theperson" for the purposes of s 48(4)(a)(ii)? [50]What is the likelihood of Mr Radhi not being able to return toNew Zealand? [52]Can the risks to Mr Radhi be removed? [56]Disposition [57]The appeal[1] Maythem Radhi is a refugee who lives in New Zealand with his wife and threechildren. The Commonwealth of Australia alleges that in 2001 he was involved inhelping asylum seekers sail from Indonesia to Australia in a vessel known as theSIEV-X1 and seeks his extradition to stand trial for people-smuggling. The SIEV-Xsank with the result that an estimated 300 lives were lost. Two others have been triedand convicted for their involvement in these events, one in Egypt and the other(Mr Khaleed Daoed, to whom we will return shortly) in Australia.1 SIEV is an acronym for Suspected Illegal Entry Vessel. So SIEV-X is the name attributed to thevessel by the Australian authorities.[2] After a defended hearing in the District Court and subsequent appeals, theCommonwealth obtained an order from the District Court that Mr Radhi was eligiblefor surrender.2 At this point, Mr Radhi applied to the District Court for an order thathis case be referred to the Minister of Justice because of compelling or extraordinarycircumstances.3 That application failed. He then applied for judicial review to theHigh Court, and the application was dismissed.4 His appeal to the Court of Appealagainst that decision was unsuccessful.5The factual context[3] Mr Radhi is now 41 years old. He was born in Iraq and is a member of apersecuted ethno-religious minority. In early 2000 he escaped Iraq and subsequentlythe United Nations High Commissioner for Refugees recognised him, his wife andtheir two children as refugees. In early 2009 Mr Radhi, his wife and their childrenwere accepted for resettlement in New Zealand. They moved here later the same year.Mr and Mrs Radhi's third child was born in New Zealand and is a New Zealandcitizen. Mrs Radhi and the two older children are now also New Zealand citizens.[4] If Mr Radhi is extradited to Australia, his wife and children would have thelegal right to go to Australia but there are financial constraints which would make itvery difficult for them to do so. They would have difficulty raising the money to visitMr Radhi and they would have major difficulties supporting themselves in Australia.[5] Mr Radhi currently holds a New Zealand residence visa and continues to berecognised in New Zealand as a refugee. His residence visa does not allow him totravel, and extradition would cause his visa to expire. But:(a) It is open to him to apply, before leaving New Zealand, for a variationof his visa conditions to allow him to leave the country for a period not2 New Zealand Police v Radhi DC Manukau CRI-2011-92-11423, 19 March 2012; Radhi v NewZealand Police [2013] NZHC 163; New Zealand Police v Radhi [2014] NZCA 327, [2014] NZAR1019; and Radhi v New Zealand Police [2014] NZSC 135.3 Police v Radhi [2015] NZDC 7576 (Judge Moses).4 Radhi v District Court at Manukau [2015] NZHC 3347 (Woolford J).5 Radhi v District Court at Manukau [2017] NZCA 157, [2017] NZAR 692 (Miller, Cooper andAsher JJ) [Radhi (CA)].exceeding 24 months. Under the policy of Immigration New Zealandthis application could not be declined.(b) There is also provision under the policy for a further 12 monthextension to the two year period. This is usually only granted if theapplicant has been present in New Zealand for a specified amount oftime in the 24 months immediately preceding the application for avariation. This presence in New Zealand requirement can be dispensedwith, but only at the absolute discretion of the decision maker.[6] If Mr Radhi is extradited but is acquitted at trial it is plausible to assume thathe will be able to return to New Zealand. He would be able to do so as of right if theproceedings take less than two years. And even if they take longer to resolve, it wouldseem probable, although it is not certain, that the discretions associated with theobtaining of a visa would be exercised in his favour. And if unable to obtain a visa,he would have a right of appeal,6 although no right of review.7[7] On the other hand, if Mr Radhi were to be found guilty, his ability to return toNew Zealand will be uncertain. If he is found guilty it is practically inevitable that hewill be sentenced to a lengthy term of imprisonment.8 If sentenced to imprisonmentfor 12 months or more, he will be an excluded person under s 15 of the ImmigrationAct 2009.9 This section provides that no visa or entry permission may be granted andno visa waiver applied to an excluded person. His ability to return to New Zealandwould depend upon him obtaining a special direction from the Minister underss 17(1)(a) and 72(3). If the Minister refused to grant such a direction, there would beno right of appeal or review against what would be the associated dismissal of the6 Immigration Act 2009, s 187(1)(a)(i). The appeal is to the Immigration Tribunal. The jurisdictionof the Tribunal in respect of such an appeal is provided for in s 187(4) with the primary focusbeing on the conformity of the decision with the relevant residence instructions but the Tribunalhas power to recommend that special circumstances of the applicant warrant consideration by theMinister (see ss 187(4)(b) and 188(1)(f)). There appears to be no right of appeal in relation to thedecision by the Minister in respect of such a recommendation and there would be no right ofreview: see ss 187(8)(a) and 187(2)(a).7 Section 187(8)(a).8 We understand that Mr Daoed was sentenced to nine years' imprisonment.9 Section 15(1)(b). He will be an excluded person for 10 years if sentenced to 12 months'imprisonment or more. He will be an excluded person without limitation of time should he besentenced to five years' imprisonment or more. As noted, Mr Daoed was sentenced to nine years'imprisonment.application for the residence visa in respect of which the special direction wassought.10 Conceivably he might have a right of review in respect of the specialdirection decision, but this is uncertain.[8] Assuming that Mr Radhi is not able to return to New Zealand, his position inAustralia will be awkward.[9] During the period after Mr Radhi arrives in Australia until the end of theprocess (including any sentence imposed) Mr Radhi will be lawfully in Australia underwhat is known as a criminal justice visa.11 But, at the end of the process, Mr Radhiwill be unlawfully in Australia12 and will thus be mandatorily detained without anyentitlement to release except (a) as part of an arrangement to leave Australia or (b)pursuant to a visa granted by the Minister of Immigration. The High Court of Australiahas held that such detention is lawful even if removal is not reasonably practicable inthe foreseeable future.13[10] I am satisfied that Mr Radhi will not be returned to Iraq in breach of theCommonwealth's non-refoulement obligations. It has not been suggested that anyother country is likely to accept him. This means that if New Zealand will not allowMr Radhi back, he will be subject to mandatory detention which will be brought to anend only by the grant of a visa.[11] Mr Radhi could apply for an Australian protection visa but, assuming he isconvicted of people smuggling, he would have no entitlement to such a visa and myassessment of the evidence is that he probably would not be granted one.14 Mr Daoed,who was convicted in Australia in relation to the SIEV-X, had previously beenextradited from Sweden. After his term of imprisonment ended, he was refused aprotection visa.10 Section 187(2)(a) and 187(8)(a).11 See s 38 and Division 4 of pt 2 of the Migration Act 1958 (Cth).12 As an "unlawful non-citizen" because his permission to be in Australia will have come to an end:see ss 13 and 14 of the Migration Act.13 Al-Kateb v Godwin (2004) 219 CLR 562.14 See ss 35A and 36 of the Migration Act.[12] Another possible option for release would be a residence determination.15 Theevidence on behalf of the Commonwealth, however, suggests that such adetermination is unlikely to be granted.[13] The evidence shows that Mr Daoed is now living in the community pursuantto a removal-pending bridging visa. We were not told (a) of the basis upon which thevisa was granted; (b) the conditions, if any, to which he is subject; (c) whether he hasfamily in Australia; and (d) how he supports himself. Mr Julian Burnside AO QC,who provided an affidavit for Mr Radhi, expressed the view that it is unlikely that hewould obtain such a visa:Given the content of the allegations against Mr Radhi and his lack ofconnection to anyone in Australia (as I understand it), it is my assessment thatthe Minister would not deem it to be in the public interest to release him fromdetention.The Commonwealth challenged the admissibility of this assertion on the basis thathow the Minister would exercise his or her discretion is outside Mr Burnside'sexpertise. I have reservations as to whether this is so. But leaving aside Mr Burnside'sassessment, as I am prepared to do, I can see no safe basis for assuming that Mr Radhiwould receive a removal-pending bridging visa. The decision of the Minister to grantor withhold such a visa is non-delegable.16 On the evidence of Mr Burnside a refusalof such a visa would be unlikely to be reviewed by the courts.[14] More generally, the evidence showed that the process of seeking visas is likelyto take a number of years. And during this time, Mr Radhi would remain indetention.17 The circumstances which would obtain if he were released and thefinancial practicalities of his wife and children joining him in Australia are uncertain.In the balance of these reasons I will refer to Mr Radhi's position in Australia if notable to return to New Zealand as involving immigration limbo.15 See s 197AB.16 Section 195A(5).17 See s 189.Legislative context[15] Most extradition requests are processed under pt 3 of the Extradition Act 1999.Under this part, the final decision on extradition is made by the Minister of Justiceunder s 30. And under s 30(3):The Minister may determine that the person is not to be surrendered if—(d) it appears to the Minister that compelling or extraordinarycircumstances of the person including, without limitation, thoserelating to the age or health of the person, exist that would make itunjust or oppressive to surrender the person; or(e) for any other reason the Minister considers that the person should notbe surrendered.As well, s 32(3), (4) and (5) provide:(3) Subsection (4) applies if—(a) the Minister has determined under section 30 that in all otherrespects the person is to be surrendered; but(b) in the Minister's opinion, compelling or extraordinarycircumstances of the person including, without limitation,those relating to the age or health of the person, exist thatwould make it unjust or oppressive to surrender the personbefore the expiration of a particular period.(4) If this subsection applies, the Minister may make an order for thesurrender of the person that is to come into effect after the expirationof a period specified in the order.(5) The Minister may, at any time after making an order undersubsection (4), vary any period specified in the order, or may cancelthe order.[16] Pausing at this point, it will be noted that:(a) The Minister has two relevant powers, the first being to refuse surrender(under s 30(3)(d))18 and the second to defer surrender (under s 32(3)and (4)).18 The Minister can also refuse on other grounds set out in s 30 of the Extradition Act including thes 30(3)(e) power to do so "for any other reason".(b) The criteria by which the Minister is required to act are expressed insimilar terms, the only difference being that the criteria relevant to thepower to defer surrender have seven added words: "before theexpiration of a particular period".[17] To facilitate the discussion which follows I will refer to the s 30(3)(d) poweras the "refusal power" and the formulation of the criteria by which it is to be exercisedas "short form". I will, in contradistinction, refer to the s 32(3) and (4) power as the"deferral power" and the formulation of the criteria by which it is to be exercised as"long form".[18] Extradition between Australia and New Zealand is governed by pt 4 of the Actunder which the Minister usually has no role. Instead, the surrender decision is madeby the District Court. The statutory procedure leading to the making of such an orderis as follows:(a) Section 41 provides that a warrant issuing out of Australia can beendorsed by a District Court Judge in New Zealand. Once endorsed thewarrant authorises the New Zealand police to arrest those sought to beextradited and to bring them to court to determine whether they areeligible for surrender under s 45 of the Act.(b) If the eligibility criteria for surrender under s 45(2) of the Act are metand there are no mandatory or discretionary restrictions on surrender,then the court must immediately make a surrender order.19[19] It is now established that there are no mandatory or discretionary restrictionspreventing surrender and that Mr Radhi is in all other respects eligible for surrenderunder s 45. So, in the ordinary course of events, extradition should followautomatically and as a matter of course. This, however, is subject to s 48 which isrelevantly in these terms:19 Section 47.48 Referral of case to Minister in certain circumstances(4) If—(a) it appears to the court in any proceedings under section 45that—(ii) because of compelling or extraordinarycircumstances of the person, including, withoutlimitation, those relating to the age or health of theperson, it would be unjust or oppressive to surrenderthe person before the expiration of a particular period;but(b) in every other respect the court is satisfied that the groundsfor making a surrender order exist,—the court may refer the case to the Minister in accordance withsubsection (5).I will refer to test in s 48(4)(a)(ii) as the "referral criteria". As will be noted, it isexpressed in long form.[20] The power of the court under s 48 being to refer only, it is left to the Ministerto determine if a person is to be surrendered if the case is referred:49 Minister must determine if person to be surrendered if casereferred(1) If a case is referred to the Minister under section 48(4) , theMinister must determine in accordance with the grounds set out insubsections (2) to (4) of section 30 whether the person is to besurrendered, as if the case had been referred to the Minister undersection 26.(2) For the purposes of determining under this section whether the personis to be surrendered, the Minister may seek any undertakings from theextradition country that the Minister thinks fit.[21] Section 51(3), (4) and (5) provide:(3) Subsection (4) applies if—(a) the Minister has determined under section 49 that in all otherrespects the person is to be surrendered; but(b) in the Minister's opinion, compelling or extraordinarycircumstances of the person including, without limitation,those relating to the age or health of the person, exist thatwould make it unjust or oppressive to surrender the personbefore the expiration of a particular period.(4) If this subsection applies, the Minister may make an order for thesurrender of the person that is to come into effect after the expirationof a period specified in the order.(5) The Minister may, at any time after making an order undersubsection (4), vary the period specified in the order, or may cancelthe order.[22] If a referral is made, the Minister has exactly the same functions as those whichapply automatically in pt 3 extraditions. The Minister thus has a refusal power(s 49(1)) to be exercised on the basis of the short form criteria (as s 30(2)–(4) areincorporated in the process).20 And the Minister also has a deferral power (unders 51(3), (4) and (5)) to be exercised on the basis of the long form criteria which arerepeated in s 51(3)(b).[23] Given that the Minister on referral has both refusal and deferral powers, itwould have been logical for the referral criteria to be expressed in terms whichencompassed both powers and the criteria by which they are to be exercised.[24] In Mailley v District Court at North Shore the Court of Appeal held that s 48(4)should not be construed as limiting the grounds upon which referral might be made tothose which have a temporal limit. Rather the Court construed it as indicating "thatsurrender might be permitted at a later point in time should the compelling orextraordinary circumstances be no longer operative".21[25] Before us, counsel on both sides argued that the drafting of s 48(4)(a)(ii) wasa mistake which is so obvious as to be within the power of the court to correct as amatter of interpretation. So both counsel contended that we should construes 48(4)(a)(ii) as though an "or" was inserted before "before the expiration of aparticular period".22 Another alternative would be to construe s 48(4)(a)(ii) as if those20 The Minister would also have the s 30(3)(e) power to refuse extradition "for any other reason".21 Mailley v District Court at North Shore [2013] NZCA 266 at [64].22 The same result could be arrived at by construing s 48(4)(a)(ii) as if it concluded with the words"or at all"; compare the reasons of Ellen France and McGrath JJ below at [90].words were not there; this on the basis that the short form expression of the criteriawould encompass referral where the circumstances warranted either refusal or deferralof surrender.[26] There being no logical explanation for the asymmetry between s 48(4)(a)(ii) ifconstrued literally and the Minister's powers under s 49, I see considerable force inthe approaches just identified. As well, on the view taken by Ellen France andMcGrath JJ, referral would not be possible where there are grave but intractablehumanitarian considerations affecting surrender but is possible where suchconsiderations are less serious. However, for reasons which I will now explain, I donot see the outcome of the appeal as dependent on acceptance of one or other of theinterpretative approaches proposed in [25]. That being so, I propose (a) to leave thisissue to one side, albeit as warranting legislative review and (b) to determine the appealon the assumption that s 48(4)(a)(ii) is to be construed as meaning what it says.[27] Section 48(4)(a)(ii) must be read in conjunction with ss 49 and 51(3), (4)and (5). These sections contemplate a situation in which the Minister might defersurrender on the basis of objections which may or may not be able to be resolvedwithin a particular time period. Where, at the end of that period, resolution has notoccurred but remains possible, the Minister may extend the period. If it becomesapparent that the objection will not be removed, the Minister may then cancel thesurrender order. On this basis, it seems to me that s 48(4)(a)(ii), even if construedliterally, will warrant the reference of a case to the Minister where the circumstanceswarrant the exercise of the powers conferred by s 51(3), (4) and (5) and thus wherethe objection to extradition is one which, over time, may be able to be resolved. Aswill be apparent, I regard the objection advanced on behalf of Mr Radhi as within thecontemplation of s 48(4)(a)(ii).Procedural history of the case[28] There are two aspects of the history of the case to which I should refer.[29] Sections 46 and 47 relevantly provide:46 Procedure following court's determination of whether personeligible for surrender(1) If the court is satisfied that the person is eligible for surrender, thecourt must—(a) issue a warrant for the detention of the person in a prison orother place authorised in accordance with section 52 of thisAct or section 169 of the Criminal Procedure Act 2011pending the surrender of the person to the extradition countryor the person's discharge according to law; 47 Court must make surrender order immediately if case notreferred to Minister(1) If the court does not refer the person's case to the Minister undersection 48(1) or section 48(4), the court must, immediately afterissuing the warrant for the detention of the person under section46(1)(a), make a surrender order in respect of the person.(2) A surrender order made under subsection (1) does not take effect—(a) until the expiration of 15 days after the date of the issue of thewarrant of detention; or(b) if an appeal, or an application for review or habeas corpus, inrespect of a determination under this Act, or any appeal fromsuch an appeal or application, is pending, until after the datethat the proceedings are finally determined and the result isthat the person is eligible to be surrendered,—whichever is the later.[30] The Act provides for a right of appeal against eligibility for surrender decisionsbut not in respect of surrender orders and s 48(4) referrals. Given the scheme of ss 45,46 and 47, and particularly s 47(2), we consider that the Judge dealing with a pt 4extradition request should address surrender (and thus s 48(4)) immediately afterdetermining eligibility for surrender. This, however, was not the process which wasfollowed in this case.[31] The warrant for Mr Radhi's arrest was issued in Brisbane in February 2011. Itwas endorsed in New Zealand on 20 July 2011 and executed on 28 July 2011.Mr Radhi was found to be eligible for surrender on 19 March 2012 and his subsequentchallenges to this decision were dismissed.23 It was only at this point, in April 2015,that Mr Radhi applied to the District Court for referral to the Minister under, inter alia,s 48(4)(a)(ii). The splitting of the eligibility for surrender and the s 48(4) referralissues has resulted in two separate and consecutive streams of litigation andunnecessary but substantial delay in the process. All issues should have been dealtwith together in the District Court, a view which was not disputed by Mr Mansfield(who was not counsel for Mr Radhi in the District Court).[32] A second procedural problem with the case is that the immigration limbo basison which the present appeal was argued was not squarely identified untilcomparatively late in the piece. Although some evidence in the District Court wasaddressed to Mr Radhi's likely post-extradition immigration status vis-à-visNew Zealand and Australia there was no real focus on the likelihood of him continuingto be detained at the expiry of any sentence of imprisonment and no real analysis ofthe possibility of him winding up in immigration limbo if he cannot return toNew Zealand.[33] Given that the detention and immigration limbo points were not raised beforeJudge Moses in the District Court, it might be thought difficult to contend that hisfailure to take them into account was a reviewable error. The Commonwealth,however, has made it clear that it does not wish to make anything of this difficulty andaccordingly I propose to address the issues on their merits.[34] Because detention and immigration limbo arguments were not squarely reliedon before either Judge Moses in the District Court or Woolford J in the High Court,there is no point in reviewing the approaches which those Judges took to the case.The judgment of the Court of Appeal[35] The Court of Appeal approached the case on the basis that if Mr Radhi isacquitted, he will, in all probability, be able to return to New Zealand.24 More23 See above at n 2.24 Radhi (CA), above n 5, at [46](d).relevantly, however, the Court also addressed what would happen if he is foundguilty:25If he is convicted, sentenced and imprisoned in Australia for more than twoyears, he will have the option of applying to Immigration New Zealand toreturn to New Zealand. His criminal conviction would be taken into account,along with the facts that Mr Radhi held refugee status and his immediatefamily are New Zealand citizens.Thus, in terms of Mr Radhi's children seeing less of their father, the positionfor the first two years would be no different from that of any family separationwhere a parent of New Zealand children will have to stand trial in Australia.If he is convicted and has to remain in Australia for more than two years,Mr Radhi's ability to return to New Zealand will be less certain, but it is notimpossible. There is nothing unjust in that, given the conviction.We agree with Woolford J that the family circumstances of Mr Radhi do notmake it unjust or oppressive for him to be surrendered. His refugee status isan extraordinary circumstance, and the fact that he might not be able to returnto New Zealand after serving his sentence might be seen as part of thatextraordinary circumstance. However, the second requirement before areferral can be made, of it being unjust and oppressive to surrender the person,is not made out. There are steps that Mr Radhi can take to protect his visastatus and reduce the risk of him not being able to re-enter New Zealand. Evenif convicted and imprisoned in Australia, Mr Radhi will be able to apply forre-entry, which will be at the discretion of Immigration New Zealand. Whenweighed against the importance of New Zealand's extradition obligations,these circumstances are not sufficient to render it unjust or oppressive tosurrender Mr Radhi.[36] The Court also addressed the possibility of a referral to the Minister for thepurpose of resolving in advance Mr Radhi's immigration difficulties:26[Counsel for Mr Radhi] submitted that referral to the Minister is appropriatein this case because the Minister has the ability to take steps to protectMr Radhi's visa status, such as seeking undertakings from ImmigrationNew Zealand . However, the fact that referral to the Minister may beadvantageous to Mr Radhi is not part of the statutory criteria.Section 48(4)(a)(ii) is clear that referral is only appropriate where there arecompelling or extraordinary circumstances making it unjust or oppressive tosurrender the person. The court has a gatekeeper or screening role. Cases thatdo not meet those criteria should not be referred. As we have discussed above,we do not consider that the requirement of it being unjust or oppressive tosurrender Mr Radhi is met.25 At [46]–[48].26 At [49] (footnote omitted).My approachNo consideration was given to Mr Radhi's position should he be unable to obtain avisa to return to New Zealand[37] Nowhere in the Court of Appeal judgment is there any explicit reference to thedifficulties which Mr Radhi will face if he cannot obtain a visa to return toNew Zealand. As I have noted, once he is finished with the Australian criminal justicesystem, he will be detained. In the absence of change to the relevant Australianlegislation, he will have no right of access to the Australian courts to challenge suchdetention directly. Assuming he is convicted it is most unlikely that he will be able toobtain a protection visa. While it is at least possible that he might eventually bereleased into the community, this is likely to take a number of years. Assuming he iseventually released, the practicalities of Mrs Radhi and the children joining him inAustralia are uncertain.[38] Removal from home and separation from family are part and parcel of theextradition process. So too is the risk of being subject to imprisonment following trial.But in almost all instances of extradition, the extradited person will be free to pick uphis or her life either at the end of the trial (if acquitted) or, at worst, at the conclusionof any sentence imposed following conviction. It is not customary for such persons,once free of the criminal justice system, to be subject to the risks of (a) indefiniteunreviewable administrative detention and (b) indefinite separation from theirfamilies. Immigration limbo in this sense is not an ordinary facet of extradition.Section 22 of the New Zealand Bill of Rights Act 1990 and art 9.1 of the InternationalCovenant on Civil and Political Rights[39] Section 22 of the New Zealand Bill of Rights Act 1990 provides:22 Liberty of the personEveryone has the right not to be arbitrarily arrested or detained.To the same effect is art 9.1 of the International Covenant on Civil and Political Rights(ICCPR):2727 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976).Everyone has the right to liberty and security of person. No one shall besubjected to arbitrary arrest or detention. No one shall be deprived of hisliberty except on such grounds and in accordance with such procedure asestablished by law.[40] Zaoui v Attorney-General (No 2) concerned deportation on security groundsunder the Immigration Act 1987.28 Section 72 of that Act provided:72 Persons threatening national securityWhere the Minister certifies that the continued presence inNew Zealand of any person named in the certificate constitutes athreat to national security, the Governor-General may, by Order inCouncil, order the deportation from New Zealand of that person.Amongst the issues in the case was the significance of the right not to be deprived oflife under s 8 and the right not to be subjected to torture under s 9 of the New ZealandBill of Rights Act and how these rights constrained the decision-making powers of theMinister and Governor-General in Council. As to this, the Court observed:29Those provisions do not expressly apply to actions taken outside New Zealandby other governments in breach of the rights stated in the Bill of Rights. Thatis also the case with arts 6.1 and 7 of the ICCPR. But those and comparableprovisions have long been understood as applying to actions of a state party –here New Zealand – if that state proposes to take action, say by way ofdeportation or extradition, where substantial grounds have been shown forbelieving that the person as a consequence faces a real risk of being subjectedto torture or the arbitrary taking of life. The focus is not on the responsibilityof the state to which the person may be sent. Rather, it is on the obligation ofthe state considering whether to remove the person to respect the substantiverights in issue.And of the application of ss 8 and 9 to s 72 of the Immigration Act 1987, the Courtwent on:30As directed by s 6 of the Bill of Rights, s 72 is to be given a meaning, if it canbe, consistent with the rights and freedoms contained in it, including the rightnot to be arbitrarily deprived of life and not to be subjected to torture. Thoserights in turn are to be interpreted and the powers conferred by s 72 are to beexercised, if the wording will permit, so as to be in accordance withinternational law, both customary and treaty-based. In this case thosepresumptions about interpretation and the exercise of statutory powers aresupported by para (b) of the long title to the Bill of Rights which says that itis an Act to affirm New Zealand's commitment to the ICCPR; further, thewording of the relevant sections of the Bill of Rights closely tracks the28 Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289.29 At [79] (footnote omitted).30 At [90], [91] and [93] (footnote omitted).matching provisions of the Covenant. As already recalled, the relevantprovisions of the Covenant have been interpreted to apply to the situationwhere the state party in question takes action by way of removal of a personto another country if that action means that that person faces a real risk oftorture or arbitrary deprivation of life. Section 72 confers powers on the Minister and the Governor-General inCouncil. The Minister has the power to certify that the continued presence ofany person in New Zealand constitutes a threat to national security. There isnothing in the statement of the broad powers conferred on the Minister and inparticular the Governor-General in Council to prevent the Minister or Cabinethaving regard to the mitigating factors which the Minister or Cabinet mightconsider indicate that the person should not be deported. The power conferredby s 72 is to be interpreted and exercised consistently with the provisions ofss 8 and 9 of the Bill of Rights and with the closely related internationalobligations in the Covenant and the Convention against Torture. Because thepower can be so interpreted and applied, those provisions, as a matter of law,prevent removal if their terms are satisfied even if the threat to nationalsecurity is made out .It is accordingly our view that the Minister, in deciding whether to certifyunder s 72 of the Immigration Act 1987 that the continued presence of a personconstitutes a threat to national security, and members of the ExecutiveCouncil, in deciding whether to advise the Governor-General to orderdeportation under s 72, are not to so decide or advise if they are satisfied thatthere are substantial grounds for believing that, as a result of the deportation,the person would be in danger of being arbitrarily deprived of life or of beingsubjected to torture or to cruel, inhuman or degrading treatment orpunishment.To the same general effect is a substantial body of jurisprudence31 in relation to theEuropean Convention on Human Rights.32 Significantly, this approach has beenapplied where extradition would carry the risk of arbitrary detention, a point which isillustrated by Sullivan v The United States of America,33 to which I now turn.[41] The offending for which extradition was sought in Sullivan was of a sexualnature and was alleged to have occurred in Minnesota. If extradited and convicted,the alleged offender would have been subject to the prospect of civil commitmentinvolving indefinite detention. Of the 600 persons who had been made the subject of31 Beginning with Soering v United Kingdom (1989) 11 EHRR 439 (ECtHR). Applied, for example,in Sullivan v Government of the United States of America [2012] EWHC 1680, [2012] 1Ex LR 435; and R (Ullah) v Special Adjudicator [2002] EWCA Civ 1856, [2003] 1 WLR 770;aff'd [2004] UKHL 26, [2004] 2 AC 323. For an overview of the authorities, see Government ofRwanda v Nteziryayo [2017] EWHC 1912 at [61]–[90].32 Convention for the Protection of Human Rights and Fundamental Freedoms ETS No 5 (openedfor signature 4 November 1950, entered into force 3 September 1953).33 Sullivan, above n 31.orders in Minnesota since 1988, not one had been released by 2012. Detention on thisbasis would not be in accordance with art 5.1 of the European Convention on HumanRights which corresponds loosely to s 22 of the New Zealand Bill of Rights Act.34[42] Extradition was nonetheless sought on the basis that there could be no certaintythat civil commitment would be sought. At the hearing of the request for extradition,the position of the United States (based on a letter from a prosecutor from Minnesota)was that the alleged offender did not meet the criteria for civil commitment.35 But, bythe time the appeal was heard, the position of the prosecutor was that it was too earlyto say whether civil commitment proceedings would be commenced.36 There wasother evidence introduced on appeal suggesting that if civil commitment was sought,an order would probably be made.37 The statistics made available to the Courtsuggested that civil commitment was considered in respect of only 13 per cent ofsexual offenders released from prison.38[43] On the basis of this evidence Moses LJ and Eady J had no difficulty inconcluding that the alleged offender faced a "real risk" of civil commitment39 whichthe Court regarded as a "flagrant denial" of his right not to be arbitrarily detained. AsEady J noted, that assessment of risk was "borne out by the absence of any undertakingup to this point".40 The determination of the appeal was held over to give theUnited States an opportunity to proffer an undertaking that civil commitment wouldnot be sought.[44] The concept of "flagrant denial" of Convention rights which was applied inSullivan comes from the jurisprudence on the European Convention.41 It encompasseswhat might be regarded as questions of degree which, for instance, arise whereextradition is opposed on the basis that the alleged offender will not receive a fair trial.In Sullivan the Court concluded that civil commitment would be a flagrant denial of34 At [33].35 See at [22]–[23].36 See at [20].37 See at [19].38 See at [21].39 At [28] per Moses LJ and at [37] per Eady J.40 At [37].41 See above at n 31.the right to be free of arbitrary detention but in that case the word "flagrant" had littleor no work to do as the conclusion that the denial was flagrant was treated as thecorollary of the conclusion that civil commitment was in breach of art 5 of theConvention.[45] The word "flagrant" usually denotes conduct which is high-handed, brazen orscandalous and, for this reason, I have reservations about its use in this context.42 Whatis important is that extradition not be refused for trivial reasons.[46] Administrative detention of Mr Radhi following the expiry of any sentence ofimprisonment would be open-ended in terms of duration. There would be no right ofaccess to the Australian courts to challenge it other than on formal grounds of illegality.This detention would, in all probability, last for a number of years. The United NationsHuman Rights Committee has, on a number of occasions, held that the immigrationdetention to which the various authors had been subjected was in breach of art 9.1 ofthe ICCPR.43 On the basis of the Human Rights Committee's decisions and Sullivan,it is arguable that sending Mr Radhi to Australia would be in breach of his s 22 rightnot to be arbitrarily detained.[47] Section 5 of the New Zealand Bill of Rights Act provides:5 Justified limitationsSubject to section 4, the rights and freedoms contained in this Bill ofRights may be subject only to such reasonable limits prescribed bylaw as can be demonstrably justified in a free and democratic society.42 Compare the discussion in Kim v Minister of Justice [2016] NZHC 1490, [2016] 3 NZLR 425at [105]–[112].43 United Nations Human Rights Committee Views: Communication No 560/1993 59th sess UN DocCCPR/C/59/D/560/1993 (3 April 1997) (A v Australia); United Nations Human Rights CommitteeViews: Communication No 900/1999 76th sess UN Doc CCPR/C/76/D/900/1999 (28 October2002) (C v Australia); United Nations Human Rights Committee Views: Communication No1014/2001 78th sess UN Doc CCPR/C/78/D/1014/2001 (6 August 2003) (Baban v Australia);United Nations Human Rights Committee Views: Communication No 2136/2012 108th sess UNDoc CCPR/C/108/D/2136/2012 (25 July 2013) (MMM v Australia); United Nations HumanRights Committee Views: Communication No 2094/2011 108th sess UN DocCCPR/C/108/D/2094/2011 (26 July 2013) (FKAG v Australia); and United Nations Human RightsCommittee Views: Communication No 2233/2013 116th sess UN Doc CCPR/C/116/D/2233/2013(22 March 2016) (FJ v Australia).Where extradition or deportation is likely to result in extra-legal, but officiallyinflicted, arbitrary loss of life or torture (which was the argument in Zaoui) s 5 doesnot have a role to play, whether direct or by analogy. Arguably the same is true ofarbitrary detention, even if it is lawful under the laws of the jurisdiction seekingextradition. Thus in Sullivan the Court did not engage with the merits of the policyconsiderations which underpinned the civil commitment regime created by the lawsof the State of Minnesota. All that mattered was that such a regime would not becountenanced under art 5 of the European Convention. In this respect, however, thestructure of the European Convention is not identical to the New Zealand Bill of RightsAct as the Convention does not contain an equivalent to s 5.[48] Leave to appeal to this Court was granted in terms which did not refer to s 22and, probably for this reason, Mr Mansfield did not argue that the extradition ofMr Radhi to Australia would breach his s 22 rights. So the Commonwealth has nothad a chance to respond to the line of argument just outlined. This is significant.I recognise that administrative detention is authorised under the laws of theCommonwealth and gives effect to what the Commonwealth regards as cogent policyconsiderations. If given the opportunity to do so, the Commonwealth would almostcertainly have argued that such detention is not arbitrary for the purposes of s 22 andmay have challenged the applicability of the Sullivan approach to the New ZealandBill of Rights Act, perhaps, as I have suggested, on the basis that there is scope for theapplication, at least by analogy, of s 5 and perhaps on other grounds.[49] In this context, I prefer not to express even a tentative view as to whether thes 22 argument would have been successful if advanced. The reasons why I havediscussed it in some detail are threefold:(a) The argument which succeeded in Sullivan, founded on art 5 of theEuropean Convention, was closely analogous and the decisions of theHuman Rights Committee to which I have referred were also cited tous. Given that I rely on Sullivan in a respect which I am about todiscuss, it would be odd not to address whether the present appealshould be decided on the basis of reasoning analogous to that of MosesLJ and Eady J.(b) I see the s 22 argument as one which, if advanced, would havewarranted serious consideration. This is material to the interpretationissue as to s 48(4)(a)(ii) because, on the approach preferred byEllen France and McGrath JJ, the s 22 argument would not be availablefor consideration. I see this as another reason for not adopting theirapproach.(c) Given the result of the appeal, the final decision on extradition will bemade by the Minister of Justice and it seems to me that, in terms ofZaoui, a decision to extradite Mr Radhi will not be able to be properlymade without the s 22 argument having been first addressed.Is the susceptibility of Mr Radhi to indefinite administrative detention a "compellingor extraordinary" circumstance "of the person" for the purposes of s 48(4)(a)(ii)?[50] I consider that Mr Radhi's susceptibility to such detention is capable of a beinga circumstance warranting referral under s 48(4)(a)(ii). Indeed, I do not see muchscope for argument to the contrary. Whether it does amount to such a circumstancedepends on an assessment of the likelihood of him in fact being administrativelydetained.[51] Since it is practically inevitable that Mr Radhi will be administratively detainedif not able to return to New Zealand, the likelihood of him being detained is largely afunction of the likelihood of him not being able to return to New Zealand.What is the likelihood of Mr Radhi not being able to return to New Zealand?[52] The analysis in the Court of Appeal as to the likelihood of Mr Radhi havingdifficulties with a return to New Zealand was limited. As will be apparent from myearlier analysis, I am inclined to the view that Mr Radhi would, if found not guilty, beable to return to New Zealand, even if the proceedings take more than two years todetermine. On the other hand, if he is convicted, it might be thought to be practicablyinevitable that he will be sentenced to at least 12 months in prison which will result inhim becoming an excluded person. And if he becomes an excluded person, there mustbe a substantial risk that he will be unable to return to New Zealand. The corollary ofthis is that there is a substantial risk that his extradition to Australia will result in theimmigration limbo consequences which I have outlined.[53] It will be recalled that in Zaoui the Court saw ss 8 and 9 of the New ZealandBill of Rights as applying to the actions of New Zealand:44 where substantial grounds have been shown for believing that the personas a consequence [of extradition or deportation] faces a real risk of beingsubjected to torture or the arbitrary taking of life.A similar approach has been taken as to the compatibility of extradition with theEuropean Convention on Human Rights. Under this approach the courts considerwhether extradition would give rise to a real risk of flagrant disregard of Conventionrights. This is illustrated by Sullivan.45[54] Zaoui and Sullivan were concerned, respectively, with extra-territorialbreaches of the New Zealand Bill of Rights Act and the European Convention onHuman Rights. I have recorded the possibility that sending Mr Radhi to Australiawould breach his s 22 right not to be arbitrarily detained but, as noted, I am notdeciding the case on that basis. That point notwithstanding, the real risk approachadopted in those cases seems to me to be of assistance in determining whetherMr Radhi's circumstances engage s 48(4)(a)(ii).[55] If extradited, Mr Radhi will, in my opinion, be at real risk of immigration limboincluding administrative detention and I regard this as a sufficient circumstance towarrant referral to the Minister.Can the risks to Mr Radhi be removed?[56] The risk of arbitrary detention in Australia could be removed by an undertakingfrom the Commonwealth but such an undertaking would not completely resolve theimmigration limbo problem. This latter problem, however, could be completelyresolved, as the Commonwealth conceded before us, by the New Zealand Minister ofImmigration granting Mr Radhi a visa in terms which would secure his entitlement to44 Zaoui, above n 28, at [79].45 Sullivan, above n 31.return to New Zealand at the end of the criminal justice process. Such a visa wouldalso resolve the risk of arbitrary detention.Disposition[57] For the reasons given, I am satisfied that the case should be referred to theMinister of Justice; this on the basis that it appears to me that because of thecompelling or extraordinary circumstances of Mr Radhi it would be unjust oroppressive to surrender him to Australia before the Minister has had the opportunityto consider the immigration limbo issue discussed in this judgment. Glazebrook andO'Regan JJ being of the same opinion the appeal is allowed and the case referred tothe Minister accordingly.[58] As we understand it, Mr Radhi is legally aided. If an order for costs is sought,application may be made. For this reason, costs should be reserved.[59] Section 48(5) of the Extradition Act provides:If the court refers the case to the Minister under subsection (1) orsubsection (4), the court must send to the Minister a copy of the warrant ofdetention together with a copy of all other documents before the court in thecase, and such report on the case as the court thinks fit.We do not have all the documents which are required to be sent to the Minister. Wewould, accordingly, be grateful if the Crown Law Office would collect and assemblethe documents so that we can comply formally with the subsection.GLAZEBROOK AND O'REGAN JJ(Given by Glazebrook J)[60] The background, legislative context and procedural history is set out in thereasons of William Young J.46[61] We agree that no explicit consideration was given by the Court of Appeal toMr Radhi's position if he cannot obtain a visa to return to New Zealand.4746 Above at [1]–[36]. We are in general agreement with those paragraphs.47 We thus agree with [37]–[38] of William Young J's reasons.[62] We agree with William Young J that there is a substantial risk that, if Mr Radhiis convicted, he will be unable to return to New Zealand.48 We consider, on thematerial before the Court, that if Mr Radhi cannot return to New Zealand, there is areal risk that he will be subjected to the mandatory detention and immigration limboconsequences outlined in William Young J's judgment. We also agree that it ispossible for these risks to be removed.49[63] This means that we agree there are compelling or extraordinary circumstanceswarranting a referral to the Minister.50 We also agree that the appeal should beallowed.51[64] As it was not relied on, we make no comment on s 22 of the New Zealand Billof Rights Act 1990.52ELLEN FRANCE AND McGRATH JJ(Given by Ellen France J)Introduction[65] We consider the intended effect of the statutory scheme was to have a narrowerimpact than those reflected in the judgments delivered by the majority. In our view,s 48(4)(a)(ii) of the Extradition Act 1999 (the Act) deals with existing immediatecircumstances of the person, such as ill-health, that make an otherwise correctextradition questionable. The personal circumstances providing the basis for referralto the Minister are to be construed in light of the phrase "before the expiration of aparticular period". On this approach, the appellant's circumstances do not comewithin s 48(4)(a)(ii).[66] We consider this interpretation is supported by the text, purpose and scheme ofthe Act. The approach is also consistent with the context including the legislative48 See at [52] of his reasons.49 See at [56] of his reasons.50 See at [55] of his reasons.51 At [57] of his reasons. We also agree with [58] and [59].52 We thus make no comment on [39]–[49] and [53]–[54] of William Young J's reasons, apart fromto agree with the last sentence of [54].history. After setting out some of the background material, we then discuss thereasons for our approach.Background[67] As has been foreshadowed, the focus of the appeal is on the correct approachto s 48 of the Act. It is helpful to first explain something of the legislative history tothe provision. The first iteration of what later became s 48(4)(a)(ii) originallyappeared in the Extradition Bill 1998 as a ground for discretionary restriction onsurrender.53 The relevant clause in the Bill was based on s 19 of the Fugitive OffendersAct 1881 (UK) (the 1881 Act)54 in force in New Zealand for extradition toCommonwealth countries until the implementation of the current Act.55[68] Section 19 of the 1881 Act provided:19. Refusal to return prisoner where offence too trivial – Where thereturn of a prisoner is sought or ordered under this part of this Act, and it ismade to appear to a magistrate or to a superior court that by reason of thetrivial nature of the case, or by reason of the application for the return of suchprisoner not being made in good faith in the interests of justice or otherwise,it would, having regard to the distance, to the facilities of communication, andto all the circumstances of the case, be unjust or oppressive, or too severe apunishment, to return the prisoner either at all or until the expiration of acertain period, the court or magistrate may discharge the prisoner eitherabsolutely or on bail, or order that he shall not be returned until after theexpiration of the period named in the order, or may make such other order inthe premises as to the magistrate or court seems just.(emphasis added)[69] The broad power at that point was exercised by the court and encompassedboth the ability to defer and to refuse to order surrender.[70] At select committee stage, the provision now found in s 48(4)(a)(ii) wasremoved from the grounds for discretionary refusal and placed in two differentclauses.56 The first of these clauses was cl 30(3)(ca) (now s 30(3)(d) of the Act) whichgave the Minister discretion under pt 3 to determine that the person should not be53 Extradition Bill 1998 (146-1), cl 8.54 Fugitive Offenders Act 1881 (UK) 44 & 45 Vict c 69.55 The international context is discussed in the judgment of McGrath and Blanchard JJ inDotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [134]–[142].56 Extradition Bill 1998 (146-2).surrendered if it would be "unjust or oppressive to surrender the person" (emphasisadded). The second clause, cl 45(4)(a)(ii) (now s 48(4)(a)(ii)), provided under pt 4that the court may refer the case to the Minister if it would be "unjust or oppressive tosurrender the person before the expiration of a particular period" (emphasis added).[71] The record suggests that the decision to relocate the original provision wasmade on the advice of the Ministry of Justice.57 Limiting the deferral power to ageand ill-health or other personal circumstances also appears to have reflected theMinistry's advice.58 Finally, the Ministry recommended the Minister, not the court,should make the decision on this ground and on whether or not deferral wasappropriate.59[72] Turning to s 48, the first point to note is that the heading indicates the provisiondeals with the referral of a case to the Minister "in certain circumstances".[73] It is useful next to explain the circumstances for which provision is made.[74] Under s 48(1), the court must refer the case to the Minister in the circumstancesset out. The case must be referred where "the court is satisfied that the grounds formaking a surrender order otherwise exist" but one of the other listed criteria are met.The criteria include where the person to be extradited is a New Zealand citizen60 andwhere it appears to the court either that there are "substantial grounds for believing"the person to be extradited "would be in danger of being subjected" to torture in theextradition country61 or that "the person has been sentenced to death or may besentenced to death by the appropriate authority in the extradition country".62 Section48(3) provides that the court is not required to refer the case to the Minister because57 Ministry of Justice Extradition Bill: Report on Amnesty Submission and Other Matters(27 November 1998) at 7.58 Ministry of Justice Extradition Bill: Proposals for Amendment (15 September 1998) at 7, wherethe advice from the Ministry was that the broad ground of "incompatible with humanitarianconsiderations" which appeared cl 8 in the first reading version of the Bill should be omitted.59 Ministry of Justice, above n 57, at 6–7. The Ministry's recommendation was that: "The power torefuse extradition on the basis that it would be unjust or oppressive because of the person's age,health or personal circumstances should be a matter for the Minister to decide, not the court. TheMinister should be able to make a surrender order with a deferred commencement if thecircumstances are likely to be transitory in nature": at 7 (emphasis added).60 Extradition Act 1999, s 48(1)(a).61 Section 48(1)(b)(i).62 Section 48(1)(b)(ii).the person is a New Zealand citizen (as is required under s 48(1)(a)) if Australia is theextradition country or the extradition country is a designated country under pt 4 of theAct.[75] Section 48(4) describes the circumstances in which the court may refer the caseto the Minister. Section 48(4) reads as follows:(4) If—(a) it appears to the court in any proceedings under section 45that—(i) any of the restrictions on the surrender of the personunder section 7 or section 8 apply or may apply; or(ii) because of compelling or extraordinarycircumstances of the person, including, withoutlimitation, those relating to the age or health of theperson, it would be unjust or oppressive to surrenderthe person before the expiration of a particular period;but(b) in every other respect the court is satisfied that the groundsfor making a surrender order exist,—the court may refer the case to the Minister in accordance withsubsection (5).[76] Apart from the present case, there has been limited consideration inNew Zealand of s 48(4)(a)(ii). The Court of Appeal in Chvastek v Commonwealth ofAustralia observed that s 48(4)(a)(ii) "is concerned only with delaying the surrenderfor compelling or extraordinary circumstances".63[77] In Mailley v District Court at North Shore the Court of Appeal said that thephrase "simply" indicated that surrender might be permitted at some later point"should the compelling or extraordinary circumstances be no longer operative".64 TheCourt was concerned that restricting its application to conditions having a temporallimit "would have the absurd result that a person who was terminally ill could not availthemselves of the provision because their condition was permanent and had no timelimit other than death".65 The inclusion of "age" in s 48(4)(a)(ii) was also seen to63 Chvastek v Commonwealth of Australia CA281/01, 9 May 2002 at [3].64 Mailley v District Court at North Shore [2013] NZCA 266 at [64].65 At [64].support that view.66 As we will explain, we do not consider Mailley is correct in thisrespect.Textual considerations[78] From this brief background, it can be seen that there are a number of textualconsiderations which suggest the circumstances referred to in s 48(4)(a)(ii) are notintended to be read broadly.[79] The first two textual matters both indicate that the provision is only meant toapply to particular, limited, cases which are an exception from the norm. As we havenoted, the heading to s 48 provides for referral of a case to the Minister in "certain"circumstances. The circumstances are those where the specific terms of the sectionare met. Further, both of the two situations in s 48 in which referral is envisaged areframed as a carve out or exception. In the first situation (under s 48(1)) the court mustrefer the case to the Minister and, in the other situation (under s 48(4)), the court mayrefer the case to the Minister. In both situations the obligation, or the ability, to referthe case arises where the court is satisfied that the grounds for making a surrenderorder otherwise exist. This suggests that it is intended the referral power will apply ina limited way.[80] The other textual aspect we note is that the phrase in s 48(4)(a)(ii) is acomposite phrase. Therefore the plain reading is that the circumstances of the personmust be compelling or extraordinary and it is "because" of those circumstances that"it would be unjust or oppressive to surrender the person before the expiration of aparticular period". The reference to "before" and to a "particular" period indicatessome immediacy.The purpose and scheme of the Act[81] The first point to note in terms of the purpose and statutory scheme is that theAct provides for two separate extradition regimes. The first of these, found in pt 3, isthe standard procedure which applies to extradition from New Zealand to certain treaty66 At [64].countries and certain Commonwealth and other countries, not including Australia.The second regime is that found in pt 4, with which the present appeal is concerned,and that deals with extradition from New Zealand to Australia and designatedcountries. The key difference between the two regimes for present purposes is thatpt 4 is intended to provide a more streamlined process for extradition.[82] Part 4 expressly applies to Australia and any designated country.67 Designationunder pt 4 requires an Order in Council and there are various requirements to besatisfied before any other country may be designated. These are set out in s 40 of theAct.68 Part 4 then provides for the endorsed warrant procedure, described by onecommentator as a "simplified extradition procedure" stemming "from its use betweencolonies dating back to imperial times".69[83] The pt 4 procedure differs from the general extradition procedure in that awarrant of arrest from the extradition country may be endorsed in New Zealand toenable the person to be surrendered. As is discussed further below, the result is thatthere is no requirement to establish a presumption that the person sought forextradition committed an extradition offence and is thus eligible for surrender.70 Theprocedure relies, as the commentator notes, on the notion, "underpinned by thepresumption of legal and procedural similarity", of comity between New Zealand andAustralia.71 The Law Commission described the effect of pt 4 as reflecting "a policydecision to put Australia in a sub-category all of its own, in recognition of theparticularly close and trusting relationship New Zealand has with it".72[84] Section 44(1) of the Act provides that when a person is arrested on a warrantendorsed under s 41 that person is to be brought before a court as soon as possible andtheir eligibility for surrender determined under s 45. Section 45(5)(b) removes the67 Extradition Act 1999, s 39.68 Essentially, it is necessary that the country complies with the "speciality" rule (the individual maystand trial on the offences for which he or she is extradited but not for pre-extradition offences)and the prohibition on return to a third country.69 Rynae Butler "Imbalance in extradition: the backing of warrants procedure with Australia underPart 4 of the Extradition Act 1999" [2017] NZCLR 63 at 63.70 See discussion of ss 45(5)(b) and 24(2)(d) below at [84].71 Butler, above n 69, at 64–65.72 Law Commission Modernising New Zealand's Extradition and Mutual Assistance Laws(NZLC R137, 2016) at [7.18].requirement, applicable to extraditions under s 24(2)(d) found in pt 3, that the court besatisfied that the evidence produced at the hearing:73 would, according to the law of New Zealand, but subject to this Act,—(i) in the case of a person accused of an extradition offence,justify the person's trial if the conduct constituting the offencehad occurred within the jurisdiction of New Zealand; or(ii) in the case of a person alleged to have been convicted of anextradition offence, prove that the person was so convicted.If the case is not referred to the Minister by the court under s 48(1) or (4) then thecourt is to make a surrender order immediately after issuing a warrant.74[85] It is in this context that s 48(4) provides for, exceptionally, referral by the courtto the Minister in certain circumstances.[86] Secondly, other parts of the Act recognise that age or ill-health may provide abasis for the Minister to defer surrender but not, specifically, for refusal.Section 51(3), for example, provides for deferral if:(a) the Minister has determined under section 49 that in all other respectsthe person is to be surrendered; but(b) in the Minister's opinion, compelling or extraordinary circumstancesof the person including, without limitation, those relating to the age orhealth of the person, exist that would make it unjust or oppressive tosurrender the person before the expiration of a particular period.Section 51(4) provides that if s 51(3) applies "the Minister may make an order for thesurrender of the person that is to come into effect after the expiration of a particularperiod".[87] Section 32(3) and (4) in pt 3 are to the same effect. While both s 32 and s 51include other, broader, powers for refusal the point is that these subsections (s 32(3)73 Extradition Act, s 24(2)(d).74 Section 47(1). See also s 47(2)(b) dealing with time to make an application for habeas corpus.We agree with William Young J that the scheme of the Act envisages that a Judge dealing with apt 4 extradition request should address surrender, and so s 48(4), immediately after determiningeligibility for surrender: above at [30].and s 51(3)) suggest an order deferring extradition is not inapt in the situations of ageor ill-health.[88] On our approach, which focuses on the immediacy of the situation, the case ofthe terminally ill person is accommodated.75 Where, for example, there was aprognosis the person was likely to die in two months, it would be open to the court toconclude that surrender was unjust or oppressive. In addition, the phrase "unjust oroppressive" also has to accommodate trial-related issues which meet the highthreshold of "compelling or extraordinary circumstances of the person".76 In thosecircumstances extradition of a very elderly person to face trial, for example, potentiallycould meet the threshold albeit the individual is obviously not going to get anyyounger. It follows that the considerations that influenced the Court of Appeal inMailley are not decisive.[89] Finally, it is apparent from the statutory scheme that a policy choice has beenmade to differentiate between those powers exercisable by the Minister and powersexercisable by the court. For example, under s 30 if the court issues a warrant fordetention the Minister must then decide whether the person is to be surrendered. Oneof the grounds on which the Minister may refuse surrender under s 30(3)(d) mirrorsthe circumstances of the person as set out in s 48(4)(a)(ii). The legislative history wehave discussed also supports the view there was a deliberate decision to give theMinister a broader power and so more flexibility. The fact that the power to refer acase vested in the court is narrower is simply a reflection of the choice made aboutwho is to exercise various powers and in what circumstances.[90] We add that neither the history nor the statutory scheme support the submissionthe difference between s 30(3)(d) and s 48(4)(a)(ii) is a mistake.77 Against this75 Contrary to the view expressed by William Young J above at [26].76 The Court of Appeal in Commonwealth of Australia v Mercer [2016] NZCA 503 at [33] (leave toappeal was refused by this Court: Mercer v Commonwealth of Australia [2017] NZSC 33) citedthis passage form the judgment of Lord Diplock in Kakis v Governor of the Republic of Cyprus[1978] 1 WLR 779 (HL) at 782–783: '"Unjust' I regard as directed primarily to the risk ofprejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to theaccused resulting from changes in his circumstances that have occurred during the period to betaken into consideration; but there is room for overlapping, and between them they would coverall cases where to return him would not be fair".77 William Young J above at [25]–[26].scheme, the omission of the words "or at all" from s 48(4)(a)(ii), in contrast to theirinclusion in s 30(3)(d), was deliberate.[91] In conclusion, Rynae Butler makes the point that "[e]xtradition is meant to beexpeditious and efficient. At the same time, the process must provide adequateprotection to the rights of the person" sought to be extradited.78 The points we havehighlighted suggest pt 4 is intended to tilt the balance towards efficiency in extraditionrecognising the particular interests in comity with Australia and any other designatedcountry whose system meets the requirements for designation under pt 4. In addition,it appears that the choice of decision maker, the Minister or the court, in particularsituations reflects policy considerations about the decision-making processes. Thismeans that there is not necessarily any asymmetry between the court's power ofreferral and the powers of the Minister but, to the extent that there is, that isdeliberate.79Application to the appellant's case[92] We do not consider the appellant's circumstances comprise a condition of thesort envisaged in s 48(4)(a)(ii). The only temporal aspect is the fact the Minister couldbring an end to the circumstances by, for example, giving the appellant New Zealandcitizenship or by undertaking to grant him a visa if he has been out of New Zealandfor more than two years.[93] The way in which the case has developed and, in particular, the belated focuson the possibility of detention in Australia after any conviction means there has beenlimited evidence about what might happen if the appellant was convicted andsentenced to a term of imprisonment, making return to New Zealand within two yearsimpossible. Nor has the potentially more significant evidence on this topic been tested.[94] On what we do know, we also take a different view from that of the majorityas to the effect of that factual material. For example, very little is known of78 Butler, above n 69, at 97.79 William Young J above at [26].Mr Khaleed Daoed's situation but, although convicted, he is now not detained. It isnot at all clear that the appellant would not be treated in the same way.80[95] Further, any current prognosis is necessarily speculative because it requires anattempt to foresee what might happen in anything from over two to 10 or more years.That speculation reflects various factors such as uncertainty as to the outcome of atrial and as to the impact of the passage of time. For example, the relevant legislativeregimes in either New Zealand or Australia may alter, as might relevant governmentpolicies in either country. The speculative aspect is such that the circumstances cannotbe said to meet the statutory criteria.[96] We add that in these circumstances we do not consider it is appropriate toventure any suggestions as to the possibility of a breach of s 22 of the New ZealandBill of Rights Act 1990.81 The issue of whether Zaoui v Attorney-General (No 2)applies to arbitrary detention, for example, is an issue of broader significance beyondthe present case and it is not necessary to decide the question in order to resolve thiscase.82 The submission was not one advanced by the appellant and we heard noargument on it.[97] We would accordingly dismiss the appeal.Solicitors:Crown Law Office, Wellington for First and Second Respondents80 See William Young J above at [1], [11] and [13] for a description of Mr Daoed's circumstances.The assessment of Mr Julian Burnside AO QC, who provided evidence by way of affidavit forMr Radhi, that the same would not necessarily occur to the appellant is based on his view of thepolitical climate.81 The extent to which the argument about s 22 of the New Zealand Bill of Rights Act 1990 may berelevant on our approach to s 48(4)(a)(ii) is not something we have considered because it does notarise on the present facts.82 Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289.