An Iraqi refugee fighting extradition to Australia to face people-smuggling charges has won his last-ditch legal bid to have his case referred to the Justice Minister.
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Maythem Radhi came to New Zealand in 2009 as part of this country's refugee quota, but has been fighting extradition since October 2010.
Australia accuses him of arranging for asylum seekers to sail from Indonesia in a boat which sank, killing more than 300 men, women and children.
Mr Radhi was found eligible for extradition, but in 2015 he appealed to the District Court, seeking an order that his case be referred to the Minister of Justice, who has wider powers to refuse the Australian request.
He applied under a section of the Extradition Act relating to a person who has extraordinary circumstances which would make it unjust for them to be extradited.
The court refused to make the order, with Judge Jonathan Moses finding there was no evidence that Mr Radhi might be prejudiced at his trial or punished or have his liberty restricted because of his refugee status.
He also ruled that the New Zealand courts could safely assume Australia's legal processes would prevent any breach of Mr Radhi's fair trial rights.
Mr Radhi then appealed to the High Court, where his lawyers raised several interests, including the hardship extradition would place on his family and the possibility his refugee status could be cancelled, meaning he was unable to rejoin his family in New Zealand.
It was also claimed that to deny Mr Radhi access to the Justice Minster was to breach procedural fairness, because the minister was the only person with authority to seek undertakings from the country requesting extradition.
However Justice Woolford ruled Judge Moses had made no errors of law in his decision refusing to order that Mr Radhi's case be put before the Minister of Justice.
"The breach of procedural fairness alleged is the denial of Mr Radhi's access to the Minister. However, Mr Radhi is unable to point to anything that would give rise to a legitimate expectation on his part of a referral to the Minister."
Similar issues were raised at the Court of Appeal, where the key issue was whether the District Court had failed to give sufficient weight to the effect extradition might have on Mr Radhi's three children.
A key contention was that the matter should be considered in relation to New Zealand's obligations under the United Nations Convention on the Rights of the Child, including that "the widest possible protection and assistance should be given to the family which is the natural fundamental group unit of society."
However that court also ruled against Mr Radhi.
"We agree with [Justice] Woolford that the family circumstances of Mr Radhi do not make it unjust or oppressive for him to be surrendered.
"Even if convicted and imprisoned in Australia, Mr Radhi will be able to apply for re-entry, which will be at the discretion of Immigration New Zealand. When weighed against the importance of New Zealand's extradition obligations, these circumstances are not sufficient to render it unjust or oppressive to surrender [him]."
Earlier this year Mr Radhi's case reached the Supreme Court, which released its decision today, with the majority of its Judges ruling the case should go to the Justice Minister for further consideration.
In the judgment, Justice Young said if Mr Radhi is found guilty in Australia and jailed for 12 months or more, he would become an "excluded person" under this country's Immigration Act and that could lead to him ending up in some kind of 'immigration limbo'.
While he would not be returned to Iraq, the Judge found there was "no room for confidence that he would be permitted to return to New Zealand".
"Although practically unable to leave Australia, he would have no legal entitlement to remain there and would thus be subject to mandatory detention until he is either granted a visa or removed from Australia.
"Such detention would be open-ended in duration and there would be no right of access to the Australian courts to challenge it other than on formal grounds of illegality. It would, in all probability, last for a number of years."
Justice Young said the risk of that happening could be avoided if New Zealand's Immigration Minister granted Mr Radhi a visa permitting him to return to New Zealand once the criminal justice process in Australia is completed.
The majority of the Supreme Court ruled that those circumstances were 'compelling or extraordinary', meaning it would be unjust to surrender Mr Radhi to Australia before the New Zealand Immigration Minister could consider those issues.
Justices Ellen France and McGrath dissented, giving a minority judgment that they believed Mr Radhi's circumstances did not come within the section of the Immigration Act allowing the case to be referred to the Justice Mnister.
The case is likely to go before the Minister early in the new year.
