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Immigration history and processes relating to the New Lynn terrorist Tuesday, 7 September 2021

This was a particularly complex case, but when Immigration New Zealand (INZ) became aware of concerns about this individual, we continued to look at different options under the Immigration Act to deport the individual and prevent him being released into the community.

At the time of the terrorist attack, although he was liable for deportation, he could not legally be deported or detained.

Generally, section 151 of the Immigration Act 2009 prevents INZ from being able to discuss the existence or details of any refugee or protection claim. However, section 151 also allows for details of a claim to be provided when there is no serious possibility that the safety of the individual or any other person would be endangered by the disclosure of the information, which is the case here.

We have also determined in this case that the public interest in this individual’s immigration history outweighs his right to privacy.

We have not been able to provide some information relating to this specific case for security reasons.

INZ received a student visa application from the individual in July 2011 to undertake a Level 7 Diploma in Electronics and Telecommunications. This application was assessed against the relevant immigration requirements, including character requirements and a student visa was granted in September 2011. As part of the application assessment, a National Security check was undertaken and no concerns were identified.

The individual subsequently arrived in New Zealand in October 2011.

On 7 November 2011, the individual made a claim for refugee status. In November 2011, he also withdrew from his study (INZ was notified of this on 23 November) and he was issued a work visa on 12 December 2011 on the basis of being a refugee claimant. He continued to be granted work visas throughout his claims and appeals.

The refugee claim was assessed by a Refugee and Protection Officer in INZ’s Refugee Status Unit and was declined in April 2012 as the claim was found to be lacking in credibility due to a number of inconsistencies in his account and a medical report that was considered unreliable.
Following his refugee claim being declined by INZ, the individual lodged an appeal that same month with the independent Immigration and Protection Tribunal. In respect of appeals on refugee and protection decisions, the IPT hears the matter “de novo”. This means that the IPT hears the claim fresh, and makes its own determination on the facts.

The individual’s appeal was successful and the IPT found that he was a refugee in December 2013. On the basis of him being granted refugee status by the IPT, he was able to apply for permanent residence under a special residence category that allows for the granting of residence to recognised refugees.

Under section 164 of the Immigration Act, refugees and protected persons cannot be deported from New Zealand except in very limited circumstances. One of those circumstances is if Article 32.1 and Article 33 of the Refugee Convention allows for the deportation, however these provisions apply to refugees but not protected persons. Article 32.1 allows for deportation on grounds of “national security and public order” and Article 33 allows for deportation if the person is “a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”.

There are no such exceptions in relation to the deportation of a protected person. Unlike the Refugee Convention, provisions in the Convention Against Torture and the International Covenant on Civil and Political Rights mean that a protected person cannot be deported on the basis of national security concerns.

The individual applied for permanent residence on 22 January 2014 and this was granted on 2 April 2014. To be granted permanent residence, he still needed to meet health and character requirements. A New Zealand police check was also required, which came back clear on 7 February 2014 and another National Security check was undertaken as part of this visa assessment and no concerns were identified.

In August 2017, the Refugee Status Unit in INZ began a review of the individual’s refugee status based on information received that he may be a threat to security. At this point, INZ was considering whether it should put a case to the Minister of Immigration to certify that the person is a threat or risk to security and therefore should be deported under section 163 of the Immigration Act. As outlined above, before INZ may deport a refugee, a refugee and protection officer must determine whether or not deportation is possible in accordance with Article 32.1 and 33 of the Refugee Convention.

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.

As a result, on 1 June 2018 he was served with a notice of cancellation of his refugee status. The notice of cancellation is the formal start of the cancellation process. It puts the refugee on notice that a Refugee and Protection Officer is formally considering cancelling their refugee status on the basis of fraud, forgery or misleading information.

The cancellation process requires a Refugee and Protection Officer to not only look at the initial grant of refugee status (and whether it was granted through fraud), but to make enquiries in respect of whether or not, despite the fraud, the person is in fact a refugee or protected person at that point in time. The individual is interviewed and any prejudicial information is put to them for comment. The individual is also able to provide written submissions in respect of their case. All of this information is taken into account before a decision is made as to whether or not their refugee status should be cancelled.

In regard to the specific case, new evidence and prejudicial information was provided by the Police during the formal process which INZ was required to put to the individual for comment. Specifically interviews with family members that established they were unaware of some key aspects of the individual’s account, which undermined his claim.

This is an important part of the process that can take some time. It requires engagement with the individual and their representative to ensure fairness and natural justice obligations are met. In this case, the individual was in prison during the period of time in which the cancellation process was being undertaken which made access difficult and added to the time the process took.

It is important that this process is thorough and robust as the outcome has the potential to result in an individual being sent home to serious harm.

The individual’s refugee status was subsequently cancelled on the basis of fraud on 1 February 2019.

On 30 April 2019, the individual was served with two deportation liability notices – one relating to his cancelled refugee status (in accordance with section 162 of the Immigration Act) and one on the basis of his criminal convictions (section 161 of the Immigration Act). A deportation order may only be served and executed once any appeals against deportation liability have been finalised.

As outlined above, consideration was given to having the Minister certify he was a threat or risk to security and therefore liable for deportation during this process. As he was at that time already liable for deportation under two sections of the Act, this was not progressed. However, a deportation order cannot be made under section 163 of the Immigration Act while a person is a refugee or has made a claim for refugee or protected person status that is still to be heard. This includes while a decision to cancel refugee status is being appealed.

The individual appealed to the independent IPT again on 30 April 2019, this time against his deportation based on the cancellation of his refugee status. As part of this appeal, the IPT were to consider whether his previous claim was fraudulent, and if so, whether he is a refugee or protected person based on his current circumstances. If he was found not to be a refugee or protected person, the IPT would determine whether he had exceptional circumstances of a humanitarian nature that meant that he should not be deported from New Zealand.

The hearing of the IPT was adjourned while the individual’s criminal matters were heard. This was agreed between the IPT, the Crown and the individual’s counsel as everyone agreed these matters, and the unsuccessful laying of charges under the Terrorism Suppression Act, were relevant to the determination that the IPT was required to make. The IPT hearing was scheduled to begin in September 2021, but was put on hold due to Alert Level 4 and the individual needing to instruct new counsel.

The adjournment of the IPT appeal while the criminal matters were heard highlights the complexity of this individual’s case and demonstrates how the aspects of his case across various part of the legal system were all connected.

Again, as the individual had lodged an appeal with the IPT, INZ was not able to pursue deportation.

In May 2021, in the lead up to his release from prison, INZ worked with other government agencies to explore options to detain the individual 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 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, as this certification may have assisted in any Warrant of Commitment application. 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. 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, as it meant the 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 the individual was “guilty of acts contrary to the purposes and principles of the United Nations”.

Before arresting and detaining a person (and before presenting its case to the IPT), INZ needed to be satisfied that the individual 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. As such, it was unlikely he could be deported and therefore 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, as the individual could not be detained for the purpose of deportation when deportation was not a realistic prospect – which it was not due to the assessment that he would highly likely be a protected person. 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.

In making an application for a Warrant of Commitment an Immigration Officer must make a statement on oath setting out the reasons why the individual should be subject of a warrant of commitment. The reason for detention would need to be based on one of the purposes of detention provided for in s 310 of the Immigration Act. Following the receipt of legal advice in this case, an Immigration Officer could not believe that the person would be deported so they could not swear an oath stating that the purpose of detention was to detain him pending the making of a deportation order with the ultimate purpose being to deport the person.

In addition, any counsel appearing for MBIE for the application for a Warrant of Commitment would need to fulfil their obligations as an officer of the Court. As representatives of the Crown, and good litigants, this would include an obligation to inform the Court, and the individual’s counsel, of INZ’s assessment of the prospect of deportation. This also applied for the IPT proceedings, and INZ was considering what position it could responsibly take in those proceedings given its assessment of protected person status.

Given the receipt of legal advice, and the finding that indicated that the individual 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 this was still under consideration pending the outcome of the IPT appeal.

To summarise, at the time of the attack, the individual:

  • 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, and
  • could not be deported or detained under Immigration Act.

 

Appendix – relevant legal provisions PDF 796KB