The Non-Refoulement Of Samsudeen: National Security Versus The Rights Of Protected Persons

Abstract

This paper considers whether New Zealand’s immigration laws should be reformed to facilitate the deportation of protected persons in the interests of national security. I examine protected persons’ rights using the case of Samsudeen: the perpetrator of a terrorist attack in Auckland, New Zealand in September 2021. Samsudeen’s circumstances provided a public exposition of how the Immigration Act 2009 allows for the rights of protected persons – specifically, non-refoulement in recognition of New Zealand’s international obligations under the Convention against Torture and the International Covenant on Civil and Political Rights – to override Immigration New Zealand’s powers to deport non-citizens who pose a national security threat to New Zealand. Samsudeen was a convention refugee, who suffered from major depressive disorder and post-traumatic stress disorder from sustained exposure to politically-motivated violence in Sri Lanka. He was granted refugee status in New Zealand and placed in the community without any mental health or resettlement support. Thus, he turned to Islamic faith and formed extreme ideologies, which led to his criminalisation for disseminating objectionable material. He spent four years in custody on remand and received no rehabilitation programmes to support his deradicalisation. When released on bail, he validated the fears of those who detained him – embarking on an act of terrorism. I critique the New Zealand Government’s express intentions to securitise its immigration landscape in light of Samsudeen’s attack. The intersection of socio-economic factors, inherent in New Zealand’s domestic asylum and criminal justice processes impacted his pathway to terrorism. Given the weak nexus between immigration and terrorism, the securitisation of immigration law to deport security threats which are exacerbated domestically is unjustified. Acknowledging the Government’s intention to reform the law in any case, I rebuke the possibility of a national security exception to non-refoulement and critique the potential reliance on diplomatic assurances to deport protected persons to places in which they would otherwise be subject to severe human rights violations.