The government is considering how it can change the law to deport people who pose a threat to national security.
Police guard the area around Countdown LynnMall after a violent extremist took out a terrorist attack stabbing six people before being shot by police on September 03, 2021 in Auckland. Photo: 2021 Getty Images
This weekend marks a year since Ahamed Aathill Mohamed Samsudeen walked into a supermarket in Auckland and attacked shoppers with a knife he is believed to have picked off the shelf.
Eight people were injured at LynnMall on Friday, 3 September 2021, before Samsudeen was shot dead by police who were following him.
What transpired was a terrorist attack, Prime Minister Jacinda Ardern said that evening. She had "expressed concern that the law could allow someone to remain here who obtained their immigration status fraudulently and posed a threat to our national security".
In a June 2022 briefing to the incoming immigration minister, Michael Wood, officials told him its current workstream included considering how the Immigration Act could be changed to "manage and mitigate the risk of violent offending that affects the safety and security of New Zealand".
"New Zealand has experienced two terror events in the last few years where the perpetrator has not been a New Zealand citizen, the most recent of which is the Samsudeen case culminating in the stabbing of shoppers in Countdown New Lynn in September 2021," it said.
"This case highlighted gaps in the immigration settings for managing individuals who are not citizens and are a known risk to public safety, but who otherwise cannot be deported. Cabinet directed officials to provide advice on potential options in the immigration system to address this risk. Officials undertook targeted consultation with immigration experts and community groups."
A screenshot from the June briefing to incoming immigration minister Michael Wood considering how the Immigration Act could be changed to mitigate the risk of violent offending that affects the safety and security of New Zealand. Photo: Screengrab
IPCA report
A report into the Samsudeen attack by the Independent Police Conduct Authority (IPCA), the Office of the Inspectorate at the Department of Corrections, and the Inspector-General of Intelligence and Security is due to be complete by the end of August, although it is not clear how much of it will be made public. It had been due to report in May, but the three bodies extended the inquiry to take in the events leading up to Samsudeen's first arrest in 2017.
The 32-year-old came to New Zealand as a student in 2011. He later told refugee officers that he and his father were abducted and tortured in Sri Lanka and he fled in fear.
Five years on, he was formally warned by police about what he had been reading and posting online. In 2017 he was arrested at Auckland airport check-in as the Security Intelligence Service (NZSIS) believed he was on his way to Syria to fight for ISIS. A review of his refugee status started the same year.
A jury found him guilty in May last year of two charges of possessing ISIS propaganda that promoted terrorism and one charge of failing to comply with a search.
He was acquitted of a third charge of possessing objectionable material and a charge of possessing a knife in a public place.
Given he had already spent three years in jail awaiting trial, a further term of imprisonment was not an option as the maximum penalty for the offending was seven months in prison.
But deportation, too, was not an option.
He had instead been living in the annex of Masjid-e-Bilal, a small Islamic Centre, since last July where he was under full-time surveillance by police and security services.
In February 2019, his refugee status was cancelled on the basis of fraud, but he could not be deported until an appeal at the Immigration and Protection Tribunal IPT was decided.
Immigration New Zealand (INZ) said at the time of the attack that the law required an assessment of whether a person facing deportation was a refugee or protected person.
"There is no national security override in respect of protected persons. INZ considered all deportation options available and determined which was the best option based on the confirmed information available at the time.
"The appeal of this [refugee status] cancellation was still to be heard by the IPT."
Other advice suggested he could be detained.
Deportation was seen as particularly critical because terrorism legislation did not allow authorities to prosecute him on an additional charge of planning a terrorist attack.
A terrorism charge against Samsudeen was thrown out by the High Court in July 2020. SIS had briefed its minister Andrew Little in 2018 that there was inadequate legislation to fight the threat of terrorism.
A regulatory impact statement explained that preparing a terrorist act was not classed as unlawful activity and police would only be able to act in the face of an immediate threat. "This necessitates an extremely high-risk approach of waiting until such time as a person becomes a legally justifiable "immediate threat" and that this would be detected in time to intervene."