In the wake of the LynnMall terror attack, there’s been a lot of questions asked and potential legal “fixes” proposed to the problem of why the terrorist was able to be active in the community. One particular issue, however, has yet to be fully addressed: what to do about the terrorist’s immigration status, and that of others like him.
Thomas Manch has a good synopsis piece on why the Auckland terrorist was not able to be deported, despite questions about his claim to refugee status and concerns regarding his intentions; while Andrew Little also discussed it yesterday in his ministerial statement to the House. To simplify matters, the primary roadblock was that his status as an ISIS-inspired militant meant that if he were sent back to Sri Lanka (the only place that he could be deported to), there was a real danger of authorities there torturing him.
As such, it was highly likely that even if the Auckland terrorist’s existing refugee status finally was revoked (because he lied in his original application back in 2011), he still would be considered a “protected person” under our Immigration Act 2009. (To answer David Seymour’s questions in the House yesterday, a person can have protected person status without being recognised as a refugee.) Under the Act, protected persons cannot be deported to places where they are at a real danger of being tortured. That’s the case even if the Minister of Immigration certifies that the Auckland terrorist was a threat or risk to security; the prohibition on deporting protected persons to places where they may be tortured trumps the statutory ability to deport such individuals.
Furthermore, because of this prohibition on deporting protected persons to places where they are at danger of being tortured, there was no power to arrest and detain the Auckland terrorist in prison under the Immigration Act. Such imprisonment can only take place where a person is actually able to be deported in fact. And because the Auckland terrorist likely was a protected person, and the only place he could be sent was to Sri Lanka where he was at danger of being tortured, he likely couldn’t be deported in fact. Meaning that the legislation’s power to arrest and detain was not available in his case.
Hence, New Zealand couldn’t move the Auckland terrorist off our shores, even if he should never have received refugee status back in 2013 and even if he now posed a risk or threat to the country’s security. And, the Auckland terrorist couldn’t be kept in prison, even if he shouldn’t have had a legal right to be in the country and posed a risk or threat to the country’s security. This state of affairs, it is fair to say, is somewhat frustrating for Andrew Little and the Government of which he is part:
I think the Leader of the Opposition does, however, alight on an important tension that we have, and that is we have given refugee status to an individual because of the claimed threat that he was under, and yet he has posed a significant threat to fellow New Zealanders. That is an intolerable tension for any country to be under. I think it does call for us to examine our laws in the context of our international obligations, but to examine our laws and to ensure that our laws don't prevent any Government affording the greatest possible protection and safety and security to its own citizens.
And so, the Government wants to review how the Immigration Act applies in situations like that of the Auckland terrorist. The problem is, it isn’t obvious what can (or, perhaps, should) be done about it.
The prohibition on sending people to places where they are at real danger of being tortured isn’t something we thought up for ourselves. It’s an obligation under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which we’ve recognised independently in our domestic law. Indeed, irrespective of this treaty, the prohibition on torture is regarded as “jus cogens” – a basic norm that applies to all states at all times. As such, it’s very hard to see how we can change our Immigration Act to allow for deporting people in the Auckland terrorist’s situation without breaching one of the most fundamental rules of international law. And New Zealand, remember, is a big fan of making sure international law is followed.
Alternatively, thought might be given to changing immigration law to allow for arresting and detaining people like the Auckland terrorist, even if it isn’t possible to deport them in fact. After all, if he shouldn’t have been considered a refugee to begin with and so allowed to stay in Aotearoa, and if he’s since become a risk or threat to our security, why not keep him in prison until we can finally deport him back to where he came from?
The problem with this solution, of course, is that there’s no way of knowing when that may be. When will the Sri Lankan authorities stop torturing those they think of as security threats? Or, let’s imagine a future suspected terrorist who has come from, say, Afghanistan in flight from the Taliban. At what point will we be comfortable that the Taliban will not torture or summarily execute those they regard as enemies?
In other words, this form of detention could very easily morph into indeterminate imprisonment of foreign-born terror suspects under the guise of immigration law. Which may be a step that New Zealand wants to take. But if we’re going to take it, let’s be really clear about what we are going to do.
Postscript: Auckland University’s Anna Hood also discusses these matters in a NZ Herald column. If you have access to their paywalled content, you really should go read what she has to say there.