15 Dec 2022

INZ recognised risk Ahamed Samsudeen posed but was stymied by law - review

7:50 pm on 15 December 2022
Countdown LynnMall and Ahmed Samsudeen, also known as Ahamed

The legislative framework made it practically impossible for Immigration New Zealand to achieve a different outcome with Ahamed Samsudeen, Michael Heron KC has concluded. Photo: 2021 Getty Images / NZ Herald / Greg Bowker

An independent review into Immigration's handling of the Lynnmall attacker has found the agency followed its processes correctly, but was limited in what it could do because of immigration laws.

Four women and a man were seriously injured with knife at the New Lynn Countdown in Auckland in September last year, before Ahamed Samsudeen was shot dead by police. Two other men were injured - one suffered a minor wound, and another dislocated his shoulder while trying to stop Samsudeen hurting others.

The report, commissioned by Immigration New Zealand (INZ) and conducted by Michael Heron KC, examined the agency's dealings with Samsudeen from the time he arrived here in 2011. Heron also reviewed files and spoke to staff from the Ministry of Business, Innovation and Employment.

It covered how INZ handled Samsudeen's declined application for refugee status in 2012, subsequent successful appeal in 2013, and cancellation of his refugee status in 2019.

It also looked at how the agency responded to information from police about his activity in 2015 onwards; and its multiple assessments of whether and how Samsudeen might be deported.

Samsudeeen had been monitored since 2015 because of his interest in Islamic State, and was arrested at Auckland Airport in 2017. The authorities believed he was a threat to national security and that he was trying to join ISIS in Syria.

He spent most of the next four years on remand in jail.

The report found INZ handled the Samsudeen file in a thorough and professional manner.

"The usual processes were inevitably modified to deal with the unique circumstances. The case was a complex one; Samsudeen was a highly problematic individual and the legislative framework made it practically impossible for INZ to achieve a different outcome," it said.

"Further, it is apparent to all involved that standard policies and procedures could only get INZ so far in dealing with Samsudeen; as this case progressed it became a novel and complex one, such that one would not expect standard policies to assist. While there were some irregularities, I do not find that there were material errors in process or that a different outcome would have resulted had matters progressed otherwise."

Michael Heron QC

Michael Heron KC undertook the independent review of how INZ handled the case. Photo: RNZ / MARIKA KHABAZI

Samsudeen was granted permanent residence in 2014, after meeting the health and character requirements. He had received a clear NZ Police Certificate, only coming to the attention of police in 2015 when he began advocating violent extremism on Facebook.

"A national security check was undertaken, with the NZSIS response returned as "no comment"; no concerns were identified at that stage. The immigration officer concerned noted that Samsudeen met all the relevant requirements under the refugee protection category [an updated Sri Lankan police clearance was waived]. The grant of permanent residence appeared orthodox in the circumstances," the report said.

Samsudeen's Sri Lankan passport expired in October 2018, meaning from that point on, a replacement passport would need to have been arranged for him to leave New Zealand, requiring some cooperation from him.

In February 2019, the Crown Solicitor and Crown Law were negotiating with Samsudeen's immigration lawyer for him to voluntarily depart New Zealand.

However, after a second appeal to the Immigration Protection Tribunal in April that year, Heron wrote the case became markedly more complex and there was no standard procedure to follow. While Samsudeen was thought to be dangerous, he could not legally be held in custody under the Immigration Act, nor could he be deported.

"It is self-evident that the provisions of the Immigration Act are not designed to hold persons who are dangerous to the public or to detain them pending the outcome of criminal proceedings. Detention may be used if it is for the purpose of deportation but that must be pursuant to a court-sanctioned and relatively short-term process," the report said.

"Whilst INZ processes and procedures appear to me to be overly laborious and cautious, they are heavily influenced by concerns of natural justice, which ultimately are shaped by the courts.

"The Samsudeen case provided a terrible conundrum for INZ officials. All involved knew that the outcome which happened was a real and significant risk.

"The provisions of the Immigration Act, however, do not allow deportation of a potential terrorist refugee posing a risk to the safety of New Zealanders, if that person's beliefs and actions expose them to the risk of torture in their home country. It may be a difficult position to accept but that is the law as it stands and INZ were bound by that."

The government has been consulting on whether the law should be changed to allow the deportation of those who are 'protected persons' under international law if they pose a risk to New Zealand.

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