The Government’s years-long mission to deport the Auckland supermarket terrorist was stymied because his support for Islamic State likely made him a “protected person” under law.

Ahamed Aathill Mohamed Samsudeen, the terrorist who was shot dead amid a stabbing attack at an Auckland Countdown on Friday, was stripped of refugee status while in custody in February 2019, after national security concerns sparked a police investigation that found he falsified documentation in his application.

The Sri Lankan national was found to have fabricated references from family members, and he embellished a medical report to match these references. A deportation notice was served.

But, more than two years later, government lawyers decided Samsudeen’s criminal record would probably make him a “protected person” under law – meaning they were unlikely to successfully deport him, even under national security grounds.

“If someone is a protected person, then that makes deportation very, very difficult,” Prime Minister Jacinda Ardern said on Monday afternoon.

The immigration fraud

Refugees and protected persons, because of the risk they could suffer harm in their country of origin, are afforded protections under the 1951 United Nations Convention on Refugees, and immigration law in New Zealand.

Under law, a refugee can only be deported if their status was gained fraudulently, if they commit a serious crime, or if they pose a threat to national security.

When Samsudeen arrived in New Zealand from Sri Lanka in 2011, bringing with him a story of being politically persecuted, tortured, and beaten, the Refugee Status Branch of Immigration NZ declined his asylum application.

Immigration NZ acting head Catriona Robinson said, in a statement, that Samsudeen’s application lacked credibility “due to a number of inconsistencies in his account and a medical report that was considered unreliable”.

But, after he appealed, the Immigration and Protection Tribunal in 2013 granted him refugee status after a psychologist found he was a “highly distressed and damaged young man”, bolstering his claim there was a risk he could be harmed if returned to Sri Lanka.

“It would be very difficult for someone to fabricate the degree of disturbance [Samsudeen] presents,” the psychologist told the tribunal.

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The Refugee Status Branch began investigating Samsudeen again after he was arrested trying to travel to Syria in 2017, to join the extremist terror organisation Islamic State of Iraq and Syria (Isis).

Robinson said police had inspected Samsudeen’s laptop and found evidence he fabricated written statements from family members to support his refugee claim, and embellished a medical report.

“Interviews by police with family members ... established they were unaware of some key aspects of the individual’s account, which undermined his claim,” she said.

Samsudeen’s refugee status was cancelled in February 2019, and two deportation notices were served. He appealed.

Immigration lawyer Simon Laurent​, who has represented refugees for more than two decades, said it was not unusual but not common for people to provide false information to bolster a claim.

“Proving to a sufficient level of corroboration that you are in fear of harm is very difficult.

“There's multiple reasons why it can happen, and it doesn't necessarily mean the person isn't a genuine claimant.”

And it doesn’t mean they won’t remain a refugee after being caught out.

Samsudeen could not be deported until his appeal was resolved, and a tribunal hearing had been paused waiting for the outcome of his criminal case. A hearing set for this month had been delayed in part due to the Covid-19 lockdown.

Immigration NZ, in a further statement provided late on Monday evening, said the tribunal, Crown lawyers, and Samsudeen’s lawyers had all agreed to delaying the hearing until his criminal case ended, as this was relevant to whether he remained a refugee.

A ‘protected person’

In May this year, as Samsudeen’s release from custody approach, officials considered having the Minister of Immigration certify him as a risk to national security, to issue a further deportation order.

It was thought it could allow Immigration NZ to seek a warrant to detain him, pending deportation.

But a month later, it was decided this wasn’t viable.

Officials considered “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” and decided he would likely be deemed a “protected person”.

A protected person, under law, can’t be deported under most circumstances due to the risk they will be killed, tortured, or ill-treated in their country or origin.

Immigration NZ said that, because it was believed Samsudeen was unlikely to be deported, an immigration officer could not swear an oath seeking him to be detained awaiting a deportation that was not expected to occur.

Laurent said it appeared officials decided that, due to Samsudeen’s radicalisation in New Zealand and charges for relating to Isis material, he had a new claim to protected status.

"He was developing a profile of being a Muslim extremist ... Muslim extremists don't go down well in Sri Lanka.

“So there was a risk that he could be a target of investigation by the Sri Lankan government, who are not always the kindest people. That was actually putting him at risk, as well as members of his family possibly as well.”

Laurent said a protected person could only be deported in a few circumstances, including when the person commits war crimes.

A protected person can be deported for being a proven risk to national security, which Laurent said was a threshold Samsudeen might not have crossed, prior to the attack.

Regardless, he said, this would likely be a long, fraught legal battle that would attract the scrutiny of the UN among others.

Officials likely made the “less confrontational” approach to wait for the tribunal hearing, which may have determined Samsudeen wasn’t a protected person.

Ardern has said that, at the time this was being considered in July, she asked officials to consider possible changes to the law so that people who are stripped of refugee status and pose a national security threat could be deported.

"There is a bit of work to be gone through there,” she said on Monday.

She said New Zealand’s international obligations would be kept “top of mind”.