The Government explored "every single pathway" to keep ISIS-inspired extremist Aathil Samsudeen out of the community, according to Deputy Prime Minister Grant Robertson, who says current legislation prevented the terrorist from being detained.
Three people remain in a critical condition after Samsudeen went on a stabbing rampage at LynnMall's Countdown in New Lynn on Friday. The 32-year-old "lone-wolf" terrorist was shot dead by undercover police at the scene after stabbing six people, with a seventh person also injured.
The Government has vowed to toughen its counter-terrorism legislation amid heavy criticism of a legislation loophole that allowed Samsudeen to stay out of jail and on Auckland's streets.
The Government is now also promising to review the Immigration Act following revelations that Samsudeen had fabricated some of the documents he had used to obtain refugee status. Authorities had been working to revoke that status - and as he carried out his act of terrorism on Friday, the Government was still trying to remove Samsudeen from New Zealand.
Ahamed Aathill Mohamed Samsudeen, originally from Sri Lanka, arrived in New Zealand on a student visa in 2011 before seeking asylum and applying for refugee status a month later, which was initially denied by Immigration New Zealand. Samsudeen then appealed that decision through the Immigration Protection Tribunal, which eventually granted him refugee status in 2013.
Years later, Samsudeen came to the attention of authorities for possessing objectionable material on his computer. Through this investigation, authorities discovered the documentation he had used for his original application appeared to be fraudulent. In early 2019, the wheels were set in motion to strip Samsudeen of his refugee status - beginning the "frustrating" cycle of court processes where his criminal charges significantly delayed deportation.
Speaking to The AM Show on Monday morning, Robertson said whether it was detainment or deportation, the Government had done everything in its power to protect the public from Samsudeen.
"I know it's frustrating, it was immensely frustrating to the Government, but we do have a rule of law that allows people to appeal. The issue then became that the person, by this stage, was facing criminal charges. The outcome of those criminal charges… was material to the decision around whether or not a deportation would go ahead," Robertson explained.
"We had to wait for the charges to be dealt with in order to get back to the deportation process. I can feel people's frustration, because I feel it too, but that is the system we've got. The Government is not above legal processes and including appeals… the courts make us go through these processes, frustrating as they are."
As Samsudeen's deportation order was still in process, the restrictions of immigration legislation meant officials' hands were also tied in regards to detainment.
Under the Immigration Act, it is not possible to detain an individual while a deportation order is in process. In order for someone to be detained, a decision regarding deportation has to have been made, Robertson says.
"We are now looking at the Immigration Act around those specific issues."
Despite the threat that Samsudeen posed to public safety, Robertson says officials were unable to sidestep legal processes, with the possibility of deportation raised as far back as May 2018.
"The Government spent a lot of time going down every single legal avenue that was available to us... We went down every single pathway we could."
The Government has since reiterated its commitment to tightening counter-terrorism legislation, with the bill passing its first reading earlier this year. It's hoped the changes will come into effect this September - but some have suggested that Friday's stabbing could have been prevented if New Zealand's notoriously out-of-date legislation had been updated sooner.
Robertson disputes this, saying "there is no absolute guarantee" the changes would have stopped this attack from happening.
"We looked at every single alternative that was available to us," he says. "We do have to have the rule of law and people's right to natural justice."
The Government will now look to review the Immigration Act to determine whether any reforms can be made.
"We will look at whether there are changes we could make to the Immigration Act, particularly around that question of whether or not someone can be detained when we are in the process of a deportation order - but unfortunately the law as it was, we could not do that."
John Battersby, a teaching fellow at the Centre for Defence and Security Studies at Massey University, supports Robertson's argument that no further action could have been taken.
Speaking to The AM Show following Robertson's interview on Monday morning, Battersby said the blame should not be apportioned to anyone other than the terrorist.
"The full extent of what is possible under current legislation has been tried here," Battersby says. "Everything that could have been done has been under the terms of current legislation.
"I think the issue is not anyone dropping the ball here - they haven't… what I would say though is that we have been a reluctant legislator over the last 20 years, and been unwilling and unable to look at what's happening overseas and make sure our counter-terrorism legislation matches, as much as possible, the threat that is emerging".
Battersby noted that while officials should have been more prepared for the prospect of terrorism on our shores, it is not realistic to assume that all acts of extremism can be prevented.
"We do need to manage expectations here. There's no such thing as a 100 percent perfect security system. A successful terrorist is someone who gets around all obstacles and circumvents whatever the security services are doing.
"New Zealand does need to wake up to the fact that it's not possible to ensure the prevention of all terrorist attacks like this."
