Note: The Difficulties of Extradition From New Zealand to China: Minister of Justice v Kyung Yup Kim

Abstract

In all extradition decisions, two competing values must be weighed: the desire to return criminals to face justice for alleged crimes; and the need to protect fundamental human rights such as freedom from torture and the right to a fair trial. Two approaches to extradition have emerged in modern extradition cases – the broad, systems-based approach, which prioritizes human rights concerns, and the narrow, individualizing approach, which prioritizes effective return. New Zealand’s Supreme Court has recently grappled with this balancing act in the 2021 decision of Minister of Justice v Kyung Yup Kim, a judicial review proceeding in which an individual challenged the decision to extradite him to China. The Supreme Court found that assurances were capable of meeting a risk of torture, and that provided further assurances were sought, they could also be capable of meeting the risk of an unfair trial. The decision of the Supreme Court can be contrasted to that of New Zealand’s Court of Appeal, which had held that before accepting assurances relating to human rights issues, a preliminary inquiry should be undertaken into the human rights conditions in the requesting state. The Supreme Court held that such a preliminary question was unnecessary. This case note discusses the approaches of both the Court of Appeal and the Supreme Court and concludes that the Supreme Court has taken a narrower individualized approach.