The Government is proposing to change immigration law to make it possible to deport refugees like the New Lynn terrorist, Ahamed Samsudeen.
This change will accompany changes to the Counter-Terrorism legislation, which will make it possible to convict someone for planning a terrorist act.
Both moves will raise important constitutional principles, and that was acknowledged yesterday in Parliament by the Minister in Charge of the Security Services, Andrew Little.
As Minister of Justice in the last Government and now also Minister in charge of the response to the Christchurch mosque massacre, he is uniquely placed to lead the Government’s response on New lynn as well.
However the immigration law change could conflict with the UN Convention on Refugees. The Counter-Terrorism law change will involve prosecuting someone for a crime that has actually not been committed.
This will be most obvious with the proposal to make planning an act of terrorism an offence.
“There is a real tension here between at what point the criminal law intercedes a person’s actions to say that what you’re doing is criminal when there is no completed act of violence or harm caused to another,” said Little yesterday.
And the whole principle of the 1951 UN Convention on Refugees is that it gives effect to the Universal Declaration on Human Rights, which says “everyone has the right to seek and to enjoy in other countries, asylum from persecution.”
In documents released at the weekend, the Prime Minister revealed that Crown Law believed an attempt to deport Samsudeen would not survive appeals in the courts.
The Crown already has experience with losing attempted deportation cases of refugees when it failed to be able to deport the Algerian refugee and alleged terrorist, Ahmed Zaoui, in 2005.
Zaoui’s high profile lawyer, Deborah Manning, also represented Samsudeen at one of his court appearances.
However, both Opposition party leaders, Judith Collins and David Seymour have been questioning the Government’s failure to deport him.
Collins asked yesterday whether he met the criteria of the 1951 United Nations Refugee Convention, which says governments “shall not expel a refugee lawfully in their territory save on the grounds of national security or public order”?
Little explained that Samsudeen had appealed the Government decision to strip his refugee status, and until that appeal was resolved, his status was unclear.
“This was a judicial process that was in train, and Ministers, members of the executive, and Government agencies do not get to determine the outcome of that,” he said.
“The individual had exercised his right to appeal his deportation order.
“He had done so.
“That process was in train, and that puts constraints on what the executive can do in relation to that individual.”
And Seymour, acknowledged that Samusdeen had appealed but asked if while the Government was waiting for that quasi-judicial process, what was stopping a Minister from declaring him to be a threat to national security.
“All of the agencies involved in managing this particular individual considered every step available to them to make sure the community was safe,” replied Little.
“That was the driving motivation for every agency involved with this individual—to keep the community safe.”
There was some more insight into how Samsudeen had gained refugee status provided yesterday with the release of the judgment of the Immigration Protection Tribunal which came after he was declined refugee status in 2012.
He then appealed that successfully in 2013.
The tribunal’s judgement, which relied in part on family documents which were subsequently found to be false, showed that he was not seeking refugee status because of his political views but because of his father’s political activities, which he argued had made the family targets of violence.
In new information yesterday, Little revealed that he was subject to intense Security Intelligence Service surveillance as early as 2016.
“In 2016, the SIS became aware of disturbing online activity by the individual, and an investigation was initiated,” he said.
“Over the years, the SIS has committed considerable resources to monitoring the threat posed by the individual because of his threatening actions.”
Little told Parliament that in 2017 he was stopped trying to travel to Malaysia (not Singapore as previously reported) “although it is believed his intended destination was Syria, where he intended to join Daesh.”
Shortly after that, Immigration New Zealand began an investigation into his refugee status because he might be a threat to security.
Asa result in 2019 it was stripped from him on the basis of fraud and he was served with a deportation notice which he appealed.
He could not be legally deported until the appeal was determined; that appeal was scheduled for 13 September. (29 months after the notice was served)
“On 8 July this year, it was deemed that the individual was likely a protected person,” Little told Parliament yesterday.
“A question remained about whether he would be eligible for deportation because of his immigration status, and this was yet to be tested in the courts.”
There was a strong suggestion from Little that the Government was frustrated by the decision of Judge Sally Fitzgerald to grant Samsudeen bail when he was re-arrested earlier this year.
“Despite many attempts to prevent it, the individual was released on bail from prison on 13 July this year,” he said.
“On release, he was immediately placed under intense surveillance, including by the Police with support from the Special Tactics Group.”
Little said that at all times, the Government and agencies attempted every legal avenue available to deport the terrorist and to keep him detained and out of the community while it did so.
“When we couldn’t keep him in custody, agencies took the extraordinary step of keeping him under constant police surveillance and followed by the Special Tactics Group when he was in public.
“All agencies were doing all that could be done to protect New Zealanders, and ultimately we were frustrated by the law dealing with terrorist activity as it currently stands.”
Little’s speech to the House yesterday make the case to change the relevant laws.
“It is right for us as a nation, and certainly for this House as the place where our laws are made, to take pause and to reflect on what we might do that might improve the situation should a situation like this arise in the future—and, God willing, it never will,” he said.
“But we have to have laws that reflect the level of risk and threat that we face at the moment.”
And though he is not the Minister of Immigration, he indicated that Government would look at the immigration legislation.
“When we offer a place of refuge and respite to those who genuinely need it, that cannot be an excuse for those who then want to cause harm to New Zealanders and turn that status on its head,” he said.
“Does our law adequately reflect that?
“Does our law allow us to act in those circumstances, in the very rare circumstances, I expect, that that would ever arise in?
“Perhaps it doesn’t, and so perhaps we should reconsider it, and we will have a look at that.”
That is obviously still some way off, but Parliament this week will receive the report from the Justice Committee on the Counter-Terrorism Bill, which includes a provision to allow someone to be charged for planning a terrorist act.
This raises the constitutional question of whether a person can be convicted of planning for an event that did not happen.
“When you look at the events of Friday for this particular person, you ask yourself at what point was it evident that this person had a plan that could fall under any definition of planning and preparing for an offence,” said Little.
“ He’d left the place where he was domiciled, he’d boarded a train, he had gone to the supermarket—these were all things that were within his routine, or at least such routine as he was able to establish in the seven weeks since his release from prison—and then he found himself in the supermarket, he saw a knife, and he took that knife, and he harmed others.
“When the House comes to deliberate over the legislation that is being considered by the select committee, that is the debate we have to have.
“That is the debate this House has to have: where do you draw that criminal line?
“It is clear we need to have one.
“It is clear we need to have an offence that relates to preparation and planning of violence and extreme acts, and this House will get the opportunity to deliberate on where the drawn line is.”
However, Little was confident yesterday that Parliament would take a bipartisan approach to the legislative changes.
“in the end, it is for this House using its deliberative function, using the intellect and talent assembled within us, as we consider these important issues—very important issues of national security—that bear upon our freedoms, that bear upon our human rights, but ultimately are there about affording us protection as a nation, to think carefully about what new and next steps we take in light of Friday’s horrific act,” he said.
“I’m confident this House will do that.”