Winston Peter’s Global Immigration Compact gave refugee terrorist “protected person” status, preventing the NZ government from deporting Ahamed Aathill Mohamed Samsudeen under previous refugee laws.
Lawyers say an opportunity to deport the LynnMall terrorist was missed if he was considered a national security threat.
But the Government says that could not have happened legally because the man was appealing against the cancellation of his refugee status and they had to wait for the outcome.
Immigration New Zealand first considered over four years ago in August 2017 if Ahamed Aathill Mohamed Samsudeen was a threat to national security and therefore liable to deportation.
He was spoken to by police in April and May 2016 and issued a warning for publishing objectionable material, a High Court judgement from 2020 said.
He was then monitored by police, and seen making comments on news media articles that referenced violence against “scum” and “enemies”.
Immigration lawyer Simon Laurent said the government did have the option to deport Samsudeen if they decided he was a threat to national security.
He said it would need the Immigration Minister Kris Faafoi to “certify” that a person constituted a threat or risk to security, and then the Governor-General to sign off on it.
“They would need to have some pretty solid grounds in order to proceed with deportation… it could have been reasonable suspicion, but I would suggest if ministerial certification was required, they would need some fairly cogent basis for making that direction. I’m not sure if they had that at that time,” Laurent said.
While Immigration New Zealand was investigating a possible national security risk designation, they discovered his refugee application was fraudulent.
“This was on the basis that evidence found on his laptop by police indicated the individual had manufactured written statements from family members in support of his claim and embellished a medical report to align it with his claims,” a statement from Minister Faafoi’s office said.
Immigration NZ eventually cancelled his refugee status on those grounds in early 2019.
The man did have a legitimate right to appeal that decision on humanitarian grounds. He lodged that appeal in April 2019, which was to be heard by the Immigration and Protection Tribunal.
Laurent said the government may have let the cancellation on grounds of fraud run its course.
“One argument would be that process should have been exhausted first. The other thing is that it would have been less contentious for the government to have allowed him to complete that [Immigration and Protection Tribunal] process, rather than make a fairly bold step to direct his deportation because of being a national security threat.”
The chairperson of the Auckland District Law Society’s Immigration and Refugee Law Committee, Stewart Dalley, agreed. He said as a refugee, the man could have been forced to leave the country had he been deemed a significant enough threat.
But a spokesperson for the Immigration Minister Kris Faafoi said the law doesn’t allow a deportation while the subject is appealing their refugee status being cancelled.
His appeal was lodged in April 2019. Samsudeen was also facing criminal charges, which only resolved in July 2021.
His IPT hearing was scheduled to happen this month, two and a half years later, but was ultimately never heard.
Prime Minister Jacinda Ardern agreed that it was not possible to deport the man while he was appealing, but said this was not a satisfactory situation.
She said the government would look whether that’s appropriate for any future cases.
“I am just going to give us a bit of time to work through some of those options. It won’t be quick,” Ardern said on Monday.
“But I think it does warrant us exploring, because most New Zealanders would say ‘if you acted fraudulently in gaining that status, and you’re a threat to national security, surely there are some mechanisms [the government] can use there’, so that’s what we’re exploring.”
A further complication emerged around the time the man’s criminal case wrapped up in July this year.
The following was issued by Jacinda Ardern as part of a timeline of the government’s attempts to deport the terrorist.
“On 8 July 2021: Following consideration of the circumstances as they stood at the time, including updated research information about his home country, the outcome of the recent High Court criminal trial, the media reporting on the criminal trial and sentencing, and legal advice provided by Immigration New Zealand legal and Crown Law, it was determined that the individual would qualify as a protected person under the Immigration Act. Accordingly, it was unlikely he could be deported.
“Subsequently, Crown Law provided advice that INZ could not exercise its powers of arrest and detention pending the making of a deportation order, as the individual could not be detained for the purpose of deportation when that was not a realistic prospect.”
A designation as a ‘protected person’ under international law gives the bearer a stronger right than a refugee to not be deported.
“National security does not override obligations preventing deportation of a protected person,” the statement from Kris Faafoi’s office said.
Auckland mall terrorist forged medical documents, boasted about duping immigration officials
The New Lynn mall terrorist forged medical records and statements from his family to bolster his claim for refugee status, which was revoked later when the bogus documents were discovered by police investigating his support for Islamic State.
And a former workmate of the 32-year-old, who stabbed and wounded several shoppers at a New Lynn supermarket on Friday, says he would boast about duping immigration officials.
“New Zealand Government don’t know about my visa,” the ex-colleague said the would-be terrorist told him.
“He was trying to say he was ripping off the New Zealand system. I think he was just bragging.”
The man, who asked to remain anonymous, said he had a “sinking feeling” when he saw the Herald’s story last month reporting how the Crown had unsuccessfully sought to prosecute Ahamed Aathil Mohamed Samsudeen under the Terrorism Suppression Act 2002.
“When you guys ran that photo the other week, of him blurred out with the air-rifle, I thought: ‘Oh my God.'”
Samsudeen was born in Sri Lanka and came to New Zealand in October 2011 on a student visa to study a diploma in electronics and telecommunications, which he withdrew from just a month later.
His original claim for asylum was rejected by Immigration New Zealand (INZ), but Samsudeen was successful in appealing the decision to the Immigration Protection Tribunal (IPT) in December 2013.
Among his claims, Samsudeen said he and his father were attacked, kidnapped and tortured because of their political background in Sri Lanka and while the IPT considered aspects of his account were “superficially unsatisfactory”, the panel thought he was credible.
This was largely because much of his account related to events which happened to his father and a psychologist’s report which said Samsudeen presented as a “highly distressed and damaged young man” suffering from post-traumatic stress disorder and depression.
Then Samsudeen came to attention of police counter-terrorism officers and intelligence agencies in 2016 following a social media post sympathetic to Islamic State attacks in Europe.
He was arrested at Auckland International Airport in May 2017 having bought a ticket for a flight to Singapore. Police believe he was attempting to join Isis forces fighting in Syria.
When they searched his apartment, detectives found a large hunting knife hidden under his mattress and seized his computer, which contained photographs and videos of extreme violence supporting the extreme Isis ideology.
The forensic search of his computer hard drive also found medical records which contained details different to those Samsudeen submitted in support of his refugee claim, according to sources.
This prompted the police to consider whether they could verify the bona fides of Samsudeen’s story. Traditionally, the police have been barred from doing so for fear of retribution on the family of those seeking asylum.
In this case, the police sought a legal opinion from Crown Law which advised they could check Samsudeen’s story with members of his family – who had also left Sri Lanka – but not any government or official sources.
Detectives interviewed members of his family who confirmed they had been targeted during Sri Lanka’s civil war, but their statements did not corroborate some of Samsudeen’s more serious torture and kidnap claims.
Armed with this new information from police, and bearing in mind Samsudeen had been radicalised to the point of talking about a lone wolf style attack, immigration officials revoked his refugee status in February 2019 and served him with a deportation notice.
“During the review of the individual’s refugee status, it was established that the documentation he had submitted in his refugee claim was fraudulent. This was on the basis that evidence found on his laptop by Police indicated the individual had manufactured written statements from family members in support of his claim and embellished a medical report to align with his claims,” a spokesperson for INZ confirmed in a written statement to Herald questions.
Again, he appealed to the IPT. The hearing was scheduled to take place last month but was adjourned because of the Covid-19 lockdown.
By this time, Samsudeen was getting closer to being released from prison and agencies were concerned about the risk he posed to the community.
“Immigration New Zealand explored whether the Immigration Act might allow them to detain the individual while his deportation appeal was heard,” Prime Minister Jacinda Ardern said.
“It was incredibly disappointing and frustrating when legal advice came back to say this wasn’t an option.”
Samsudeen’s former colleague described him as a “loner” who didn’t speak about his family.
“He hardly talked to anyone and didn’t respond to much direction,” he said. “He was just a difficult person to manage.”
He described noticing “odd” Facebook posts about “living in a land of non-believers” and said Samsudeen showed him a video at work of a chicken being slaughtered.
While moves to deport Samsudeen were taking place, he was facing new criminal charges.
He had already been sentenced to a year of supervision in September 2018 after pleading guilty to representative charges of knowing distribution of restricted material under the Films, Videos, and Publications Classifications Act, two charges of dishonestly using a document and one charge of refusing to assist police.
Samsudeen’s fraud charges came for offences in April 2017 when he twice provided false employment details when applying for credit cards to gain access to more than $10,000 in credit, court documents show.
He was arrested again just a day after being granted bail pending his initial supervision sentence for buying an identical hunting knife from an East Tamaki shop.
After two charges, including for possession of a metal throwing star, were dismissed last year, Samsudeen went to trial in May at the High Court at Auckland.
The jury found him guilty of two counts of possessing objectionable propaganda-style Isis material, a pair of nasheeds (hymns and chants) with images.
One referenced martyrdom, featured a black-clad fighter with a machine gun, Isis flag, and lyrics advocating for jihad and decapitation. The other, titled “We came to fill horror everywhere”, depicts men dressed in black with assault rifles, the Isis flag and a city on fire.
He was acquitted of a third charge of possessing an objectionable and violently graphic Isis video, which depicted a prisoner being decapitated.
Samsudeen was also acquitted of possession of an offensive weapon in a public place, the knife he bought at the East Tamaki shop. He was found guilty of failing to comply with a police search for refusing to provide police with his pin code for his devices.
In July, he was sentenced to 12 months’ supervision by Justice Sally Fitzgerald, who declined to impose the Crown-sought condition of GPS monitoring. The prosecutor had, however, conceded GPS monitoring would not prevent the type of offending for which he had been found guilty.
When Samsudeen carried out his attack he was on bail, granted a week after his July sentencing by a District Court judge, for assaulting two Corrections’ staff while in custody.
He was shot dead shortly after his terror began by members of the police’s elite Special Tactics Group, which had been part of a constant and covert surveillance operation since Samsudeen’s release from custody.
Immigration NZ’s efforts to deport Samsudeen
In reponse to Herald questions, INZ released Samsudeen’s immigration history and the processes followed.
In May 2021, in the lead up to his release from prison, INZ said it worked with other government agencies to explore options to detain Samsudeen under the Immigration Act pending the making of a deportation order – including the hearing of any appeal).
“Initial Crown Law advice indicated INZ could pursue the arrest and detention of the individual on the basis that he was liable for deportation and awaiting the service of a deportation order,” INZ said.
The agency could then apply to a District Court judge for a warrant of commitment for his continued detention pending deportation.
In May 2021, INZ also began work on preparing a case for the Minister of Immigration to consider whether he should certify the individual as a threat or risk to security under section 163 of the Immigration Act. This certification may have assisted in any warrant of commitment application, INZ said.
“A large proportion of the evidence to be used for this case was intended to come from the evidence provided in his most recent criminal trial. At that trial, he was found not guilty on a number of charges,” INZ’s statement read.
“This meant that in order to fulfil INZ’s fairness and natural justice obligations, the evidence used in respect of those charges would need to be put to him for comment if it was to be used as evidence for certification due to the fact that he was found not guilty.”
The verdicts in the criminal trial also added complexity to the appeal proceedings.
It meant evidence from the criminal investigation would need to be put before the IPT in order to establish an aspect of INZ’s case in that appeal – specifically that Samsudeen was “guilty of acts contrary to the purposes and principles of the United Nations”.
Before arresting and detaining a person, INZ said it needed to be satisfied Samsudeen would be able to be deported.
“In order to do so, a reassessment of the individual’s case was conducted as to whether he was likely to be a refugee or protected person.
“In early July 2021, following consideration of the circumstances as they stood at the time, including updated research information about his home country, the outcome of the recent High Court criminal trial, the media reporting on the individual’s current and past criminal trials and sentencing, and legal advice, the reassessment concluded that the individual would highly likely qualify as a protected person under the Immigration Act.”
INZ said because of this it was unlikely Samsudeen could be deported and a deportation order could not be made.
Subsequently, Crown Law provided advice that INZ could not exercise its powers of arrest and detention pending the making of a deportation order because Samsudeen could not be detained for the purpose of deportation when deportation was not a realistic prospect.
“As such, INZ could not, in good faith, seek a warrant of commitment if it did not believe the purpose for detention under the Immigration Act could be made out,” INZ said in its statement.
Given the receipt of legal advice, and the finding that indicated Samsudeen would highly likely be recognised as a protected person, and therefore not deportable, it was also decided not to pursue this additional ground of deportation liability under section 163 of the Immigration Act.
Although, INZ, said this was still under consideration pending the outcome of the IPT appeal.
At the time of the attack, INZ found the following of Samsudeen:
• He had an active appeal with the IPT
• Was still a permanent resident pending the outcome of the IPT appeal
• Was considered highly likely to be assessed as a protected person
• Still had active criminal matters before the court
• Could not be deported or detained under Immigration Act
