The Commission considers this is an unacceptable limitation on its functions and powers, especially in a context where vulnerable individuals are at a clear risk of discrimination.105 83. The Committee for the Elimination of All Forms of Discrimination Against Women106 and the Committee for the Rights of Persons with Disabilities107 have called for the repeal of this provision. 84. The Committee may wish to recommend that the Government repeals s 392 of the Immigration Act 2009. Extraditions (List of Issues item 9) 85. As set out in the State Party report108, in 2015 the Minister of Justice, after seeking diplomatic assurances from the People’s Republic of China as to treatment, determined that Kyung Yup Kim should be surrendered to the PRC. On 11 June 2019, the Court of Appeal quashed the Minister’s decision, which was appealed. 86. In June 2022, the Supreme Court in Minister of Justice v Kyung Yup Kim [2021] NZSC 57 unanimously held that the Government could surrender Mr Kim, once assurances from Chinese authorities that he would get a fair trial and not be tortured were received.109 87. The Supreme Court held:110 … it is possible for a Minister considering extradition to accept assurances in relation to a person at high risk of torture and a state where torture is systemic, provided the assurances are sufficiently comprehensive, there is adequate monitoring and there is a sufficient basis for concluding that the assurances will be complied with.111 88. The Court also held that it is possible to accept assurances from a state with systemic issues in relation to the right to a fair trial, provided it is satisfied that the individual at issue will receive a fair trial.112 89. The Commission intervened in the case in support of the Court of Appeal’s decision to quash the Minister’s decision to surrender Mr Kim. The Commission’s position was: (a) First, the only principled way for Aotearoa New Zealand to comply with the obligation of non-refoulement is not to surrender a person in any circumstances where it has been determined that there are substantial grounds for believing that the person would be in danger of being subjected to torture in the requesting State. The absolute nonrefoulement obligations does not allow for limitations or derogations. The effect of permitting diplomatic assurances is to make a person’s protection from torture dependent upon non-binding commitments that neither the person at risk of torture nor 105 Human Rights Committee, General Comment No.32 – Article 14: Right to equality before courts and tribunals and to a fair trial (CCPR/C/GC/32) (23 August 2007) at [9]. 106 CEDAW Committee Concluding observations on the eight periodic report of Aotearoa New Zealand, UN Doc. CEDAW/C/NZL/CO/8 (25 July 2018) at [20]. 107 Committee on the Rights of Persons with Disabilities, Concluding observations on the combined second and third periodic reports of Aotearoa New Zealand UN Doc. CRPD/C/NZL/CO/203 (26 September 2022) at [38c] 108 At [79]. 109 Minsiter of Justice v Kyung Yup Kim [2021] NZSC 57 available at https://www.courtsofnz.govt.nz/assets/cases/2021/2021-NZSC-57.pdf . 110 Ibid., at [128]. 111 Ibid., at [128]. 112 Ibid., at [280]. 22