Maythem Kamil Radhi v The District Court at Manukau

• Jurisdiction: New Zealand
• Judge: William Young J,Glazebrook,O'Regan JJ,Glazebrook J,Ellen France,McGrath JJ,Ellen France J
• Judgment Date: 21 December 2017
• Neutral Citation: [2017] NZSC 198
• Docket Number: SC 57/2017
• Court: Supreme Court
• Date: 21 December 2017

Between

Maythem Kamil Radhi

Appellant

and

The District Court at Manukau

First Respondent

The Commonwealth of Australia

Second Respondent

[2017] NZSC 198

Court:

William Young, Glazebrook, O'Regan, Ellen France and McGrath JJ

SC 57/2017

IN THE SUPREME COURT OF NEW ZEALAND

Counsel:

R M Mansfield for Appellant

D L Harris abiding for First Respondent

M J Lillico and R K Thomson for Second Respondent

• A The appeal is allowed.

• B The appellant's case is referred to the Minister of Justice pursuant to s 48(4)(a)(ii) of the Extradition Act 1999.

• C Costs are reserved.

JUDGMENT OF THE COURT

REASONS

William Young J	[1]
Glazebrook and O'Regan JJ	[60]
Ellen France and McGrath JJ	[65]

William Young J

Table of Contents

	Para 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 be unable 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 of the International Covenant on Civil and Political Rights	[39]
Is the susceptibility of Mr Radhi to indefinite administrative detention a “compelling or extraordinary” circumstance “of the person” for the purposes of s 48(4)(a)(ii)?	[50]
What is the likelihood of Mr Radhi not being able to return to New 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 three children. The Commonwealth of Australia alleges that in 2001 he was involved in helping asylum seekers sail from Indonesia to Australia in a vessel known as the SIEV-X 1 and seeks his extradition to stand trial for people-smuggling. The SIEV-X sank with the result that an estimated 300 lives were lost. Two others have been tried and convicted for their involvement in these events, one in Egypt and the other (Mr Khaleed Daoed, to whom we will return shortly) in Australia.

2 After a defended hearing in the District Court and subsequent appeals, the Commonwealth obtained an order from the District Court that Mr Radhi was eligible for surrender. 2 At this point, Mr Radhi applied to the District Court for an order that his case be referred to the Minister of Justice because of compelling or extraordinary circumstances. 3 That application failed. He then applied for judicial review to the High Court, and the application was dismissed. 4 His appeal to the Court of Appeal against that decision was unsuccessful. 5

The factual context

3 Mr Radhi is now 41 years old. He was born in Iraq and is a member of a persecuted ethno-religious minority. In early 2000 he escaped Iraq and subsequently the United Nations High Commissioner for Refugees recognised him, his wife and their two children as refugees. In early 2009 Mr Radhi, his wife and their children were 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 Zealand citizen. 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 the legal right to go to Australia but there are financial constraints which would make it very difficult for them to do so. They would have difficulty raising the money to visit Mr Radhi and they would have major difficulties supporting themselves in Australia.

5 Mr Radhi currently holds a New Zealand residence visa and continues to be recognised in New Zealand as a refugee. His residence visa does not allow him to travel, and extradition would cause his visa to expire. But:

• (a) It is open to him to apply, before leaving New Zealand, for a variation of his visa conditions to allow him to leave the country for a period not

  exceeding 24 months. Under the policy of Immigration New Zealand this application could not be declined.

• (b) There is also provision under the policy for a further 12 month extension to the two year period. This is usually only granted if the applicant has been present in New Zealand for a specified amount of time in the 24 months immediately preceding the application for a variation. This presence in New Zealand requirement can be dispensed with, 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 that he will be able to return to New Zealand. He would be able to do so as of right if the proceedings take less than two years. And even if they take longer to resolve, it would seem probable, although it is not certain, that the discretions associated with the obtaining 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 to New Zealand will be uncertain. If he is found guilty it is practically inevitable that he will be sentenced to a lengthy term of imprisonment. 8 If sentenced to imprisonment for 12 months or more, he will be an excluded person under s 15 of the Immigration Act 2009. 9 This section provides that no visa or entry permission may be granted and no visa waiver applied to an excluded person. His ability to return to New Zealand would depend upon him obtaining a special direction from the Minister under ss 17(1)(a) and 72(3). If the Minister refused to grant such a direction, there would be no right of appeal or review against what would be the associated dismissal of the

application for the residence visa in respect of which the special direction was sought. 10 Conceivably he might have a right of review in respect of the special direction decision, but this is uncertain

8 Assuming that Mr Radhi is not able to return to New Zealand, his position in Australia will be awkward.

9 During the period after Mr Radhi arrives in Australia until the end of the process (including any sentence imposed) Mr Radhi will be lawfully in Australia under what is known as a criminal justice visa. 11 But, at the end of the process, Mr Radhi will be unlawfully in Australia 12 and will thus be mandatorily detained without any entitlement 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 Australia has held that such detention is lawful even if removal is not reasonably practicable in the foreseeable future. 13

10 I am satisfied that Mr Radhi will not be returned to Iraq in breach of the Commonwealth's non-refoulement obligations. It has not been suggested that any other country is likely to accept him. This means that if New Zealand will not allow Mr Radhi back, he will be subject to mandatory detention which will be brought to an end only by the grant of a visa.

11 Mr Radhi could apply for an Australian protection visa but, assuming he is convicted of people smuggling, he would have no entitlement to such a visa and my assessment 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 been extradited from Sweden. After his term of imprisonment ended, he was refused a protection visa.

12 Another possible option for release would be a residence determination. 15 The evidence on behalf of the Commonwealth, however, suggests that such a determination is unlikely to be granted.

13 The evidence shows that Mr Daoed is now living in the community pursuant to a removal-pending bridging visa. We were not told (a) of the basis upon which the visa was granted; (b) the conditions, if any, to which he is subject; (c) whether he has family 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 he would obtain such a visa:

Given the content of the allegations against Mr Radhi and his lack of connection to anyone in Australia (as I understand it), it is my assessment that the Minister would not deem it to be in the public interest to release him from detention.

The Commonwealth challenged the admissibility of this assertion on the basis that how the Minister would exercise his or her discretion is outside Mr Burnside's expertise. I have reservations as to whether this is so. But leaving aside Mr Burnside's assessment, as I am prepared to do, I can see no safe basis for assuming that Mr Radhi would receive a removal-pending bridging visa. The decision of the Minister to grant or withhold such a visa is non-delegable. 16 On the evidence of Mr Burnside a refusal of 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 likely to take a number of years. And during this time, Mr Radhi would remain in detention. 17 The circumstances which would obtain if he were released and the financial 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 not able to return to New Zealand as involving immigration limbo.

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 Justice under 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 extraordinary circumstances of the person including, without limitation, those relating to the age or health of the person, exist that would make it unjust or...