Marcelo Rodriguez Ferrere and Andrew Geddis: The New Zealand Court of Appeal on Extradition to the PRC

The recent massive street demonstrations against a proposal to enable extradition of some criminal suspects from Hong Kong to mainland China (as well as Taiwan and Macau) have focused global attention on the People’s Republic of China’s (PRC’s) criminal justice and judicial system, with protestors voicing their fears that any extradition arrangement would expose those removed under it to arbitrary detention, unfair trial and torture. The United Kingdom Government (softly) echoed this alarm when Theresa May told the Commons “it is vital that those extradition arrangements in Hong Kong are in line with the rights and freedoms that were set down in the Sino-British joint declaration.”

However, such concerns are not really new. The PRC has in recent years aggressively pursued across the globe those citizens whom it accuses of having enriched themselves through corruption and other unlawful means, using various mechanisms to return them to its territory to try pour encourager les autres. (See S Choo, “Circumventing the China Extradition Conundrum: Relying on Deportation to Return Chinese Fugitives” (2018) 50 NYUJILP 1361). It would be a far easier (and more diplomatically legitimate) process for other countries to agree formally to extradite such alleged offenders to the PRC. However, the PRC faces a problem in that many countries, including the United Kingdom, have moral and legal qualms about sending suspects into an investigative and judicial process with well documented human rights and procedural shortcomings. For example, Sweden’s Supreme Court currently is considering whether an individual accused of embezzlement can be extradited to the PRC consistently with the European Convention on Human Rights Articles 3, 6 and Protocol 13. Should a similar request ever be made of the United Kingdom, the same questions would have to be addressed under the Extradition Act 2003, ss 21 and 87.

The New Zealand Court of Appeal recently faced this issue in Kim v Minister of Justice [2019] NZCA 209. The PRC wishes to try Mr Kim in a Shanghai court for murder and has been seeking his extradition from New Zealand since 2012. (For full discussion of the background to the case, see M Douglas, “The Extradition Relationship Between New Zealand and China: Kim v Minister of Justice” [2017] NZCLR 123.) After receiving assurances from the PRC and other sources regarding Mr Kim’s treatment there, the Minister of Justice agreed to his extradition in 2016. Mr Kim sought judicial review of that decision, arguing in effect that the Minister simply cannot trust that the PRC will try him fairly. The Court of Appeal unanimously found that the Minister’s decision was flawed and ordered that it be revisited. This post considers first the substance of the Court’s ruling, before discussing the novel standard of review it applied to the Minister’s decision.

The Court of Appeal’s substantive ruling

The Minister of Justice first agreed to surrender Mr Kim to the PRC in 2015. Mr Kim successfully challenged this initial decision in the High Court (“the first review”) on the basis that the Minister had failed to properly assure herself that his rights would be respected by the PRC as required by the Extradition Act 1999, s 30. Subsequently, the Minister sought additional advice on those matters identified by the Court from a professor of law in Hong Kong, information from the New Zealand Minister of Foreign Affairs and his officials, and confirmation from Chinese officials about when New Zealand officials would have access to recordings of police questioning of Mr Kim. After reconsidering the matter in light of all this new material, the Minister once again concluded that Mr Kim could receive a fair trial in the PRC consistent with New Zealand’s human rights obligations and agreed to his surrender. Mr Kim’s initial challenge to the Minister’s second decision was rejected by the High Court (“the second review”), but accepted by the Court of Appeal.

The Court of Appeal summarised why they largely agreed with Mr Kim that the High Court’s second review judgment was wrong and the Minister’s decision remained flawed in spite of the further information received:

The concerns we have identified are wide-ranging. Some of the matters we have identified raise serious issues as to whether a decision to surrender Mr Kim could be 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 meet the risk of torture in a country where torture is illegal yet remains widespread because of cultural and systemic features of the PRC criminal justice system. Other issues may be still more difficult to address: the existence of direct political influence in the criminal justice system and the evidence of harassment, and even persecution, of criminal defence lawyers. We do not exclude the possibility however that further inquiry may produce information on these matters of which we are unaware, and which show a different picture of the PRC criminal justice system. (para 274)

In other words, the Court of Appeal regarded the problems with the PRC’s criminal justice system as being so deeply rooted and inimical to basic principles of justice that it may well be impossible for any Minister to ever be satisfied that a person can receive a fair trial in that country. And if that is the case, no reasonable Minister may exercise their discretion under the Extradition Act 1999 to agree to surrender a person for extradition to the PRC.

Needless to say, this represents a quite damning analysis of the PRC’s criminal procedure practices and legal system with ramifications beyond the judicial sphere. In particular, China has sought to establish an extradition treaty with New Zealand since 2016. Not only does the Court of Appeal’s judgment effectively halt any future extraditions to China under current legal procedures, it also puts a seemingly insurmountable hurdle in the way of establishing any such new treaty arrangement. Because, in this judgment’s wake, it is difficult to see how any government could claim to be confident that it is safe to send individuals to face trial in the PRC. Such concerns already have stymied an extradition treaty between China and Australia in 2017. It seems inevitable they will do the same in New Zealand’s case.

The Court’s application of standard of review

In addition to its significant political and diplomatic impact, Kim also represents a potential milestone in New Zealand administrative law: the first Court of Appeal decision to unequivocally accept and apply variable intensity of review. It is worth setting out the Court’s analysis in full:

The standard of review is not in issue on this appeal. It is common ground between the parties that the Judge applied the appropriate standard of review in both the first and second judicial review. In the first judicial review decision, the Judge held that, due to the fundamental human rights at stake, the appropriate standard of judicial review of the Minister’s decision is one of heightened scrutiny. Whilst not amounting to a merits view, it requires the Court to:

…ensure the decision has been reached on sufficient evidence and has been fully justified, while recognising that Parliament has entrusted the Minister (not the courts) to undertake adequate enquiries and to exercise her judgment on whether surrender should be ordered.

This approach reflects that it is not for the court to decide whether the relevant risk exists, but rather whether it was reasonable for the Minister to conclude that it does not. In doing so, the court is entitled to subject the Minister’s reasoning process to anxious or heightened scrutiny. (para [45], footnotes omitted)

In context, ‘anxious or heightened scrutiny’ was justified as:

All parties have proceeded on the basis that there are good grounds 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 with Mr Kim’s extradition the Minister is guided by a correct understanding of the law, and makes decisions properly grounded in evidence and only after consideration of all relevant evidence. (para [47])

We make three observations about this rather pedestrian acceptance that the circumstances of Mr Kim’s extradition demanded heightened scrutiny. The first is that, despite the appearance of it being a routine matter, the Court of Appeal has never before so clearly adopted and applied “anxious scrutiny” or “heightened scrutiny” in its decisions. The concept of intensity of review was discussed rather abstractly in Taylor v Chief Executive of the Department of Corrections [2015] NZAR 1648, without it being clear what impact it had in the case. Before that case, the last period where there was substantive discussion of variable intensity was ten years ago in Ye v Minister of Immigration [2009] 2 NZLR 596 and Huang v Minister of Immigration [2009] 2 NZLR 700, whose impact was blunted when appeals to the Supreme Court in each case failed to yield any discussion by that Court on the subject. Other clear acknowledgements by the Court of Appeal in Quake Outcasts v Minister of Canterbury Earthquake Recovery [2017] 3 NZLR 486 and Conley v Hamilton City Council [2008] 1 NZLR 789 are distinguishable in that they involved statutory references to a standard of reasonableness. Kim stands apart from all these decisions in that the Court not only accepted that variable standards of review exist and that the circumstances in the case demanded heightened scrutiny, but then went on to apply that higher standard in practice.

Given that this decision represents something of a watershed, it is disappointing that the Court itself did not recognise this fact and take the opportunity to provide guidance and clarity to lower courts. Beyond referencing the High Court’s first review decision, the Court did not note any other cases or commentary on the standard of review question. That first review decision relied on the commentary in De Smith’s Judicial Review (7th ed, Sweet & Maxwell, London, 2013) to inform its discussion of intensity (at [7]), but it is undesirable to adopt this Russian doll approach to determining the theoretical basis for the Court’s reasoning. A core problem plaguing New Zealand’s approach to substantive review is that there has been little guidance from senior appellate courts as to the correct approach to follow. Mere mentions of the authorities are insufficient and assumptions that an area is settled are unhelpful. The Court’s decision in Kim thus squandered a golden opportunity to clarify one of the most confused and confusing areas of administrative law.

A final observation is that the Court itself might have benefitted from rehearsing the authorities and being far more clear as to the appropriate approach. It is uncertain, for example, whether the Court’s ‘anxious or heightened scrutiny’ approach is restricted to those grounds of review involving reasonableness or also applies to claims of error of law and taking into account irrelevant considerations. Certainly, the Court did not explicitly confine the ‘anxious or heightened scrutiny’ to reasonableness grounds. And the discussion of the appropriate standard of review ahead of the analysis of all grounds of appeal, along with mentions of it when considering matters other than reasonableness (see, e.g., [78]), appears to suggest that it was to have universal applicability. If this is indeed the case, then Kim represents a major departure from existing judicial discussion of intensity of review which largely confines it to the ground of reasonableness, and may even suggest a gradual shifting away from the grounds of review framework entirely (on which see D Knight, Vigilance and Restraint in the Common Law of Judicial Review (CUP, Cambridge, 2018)). We are, however, left to parse the words of the Court of Appeal as whether this really was its intention.

Regardless of whether the ‘anxious or heightened scrutiny’ standard was confined to reasonableness alone or applies to all grounds of review, we also may ask just what it actually involves. The Court’s attention to detail when analysing the PRC’s justice system suggests that it really was engaging in ‘correctness’ review. For instance, when considering whether the Minister could rely upon guarantees from the PRC government that Mr Kim would not be tortured, the Court found:

The Minister does not appear to have turned her mind to the systemic disincentives to complain of torture identified in the material before her. Were Mr Kim to complain, he would nevertheless remain under the control of those who had perpetuated the torture. There is nothing in the assurances to provide otherwise. There was also information before the Minister that those who torture seldom face consequences for so doing. A co-worker is unlikely to blow the whistle on torture, if they know they will probably have to continue to work with the wrong-doer. (At 135.)

This very close, granular analysis of the basis for the Minister’s decision has the appearance of the Court substituting its view for that of the Minister, in that it all but determines as a matter of fact that Mr Kim would continue to face a real and ongoing risk of torture irrespective of any undertakings the PRC government may provide.

Conclusion

The Court of Appeal’s decision in Kim has important ramifications for New Zealand’s diplomatic relationship with the PRC (which is now New Zealand’s largest trading partner), and provides a tantalising but ultimately frustrating suggestion of a significant development in the judicial approach to reviewing ministerial decisions. Its weight is enhanced by the fact the judgment’s author was the country’s now-Chief Justice Helen Winkelmann, while another member of its bench (Justice Joe Williams) also has been subsequently elevated to the Supreme Court. It will therefore be interesting to see if the New Zealand Government chooses to appeal this decision; both in terms of whether the Supreme Court can clarify the approach taken, and also how that body will be able to replace its two current members involved in deciding it.

Marcelo Rodriguez Ferrere, Senior Lecturer, Faculty of Law, University of Otago

Andrew Geddis, Professor, Faculty of Law, University of Otago

(Suggested citation: M. Rodriguez Ferrere and A. Geddis, ‘The New Zealand Court of Appeal on Extradition to the PRC’, U.K. Const. L. Blog (24th Jun. 2019) (available at https://ukconstitutionallaw.org/))