Anna Hood: Q&A on our refugee system in light of the LynnMall terrorist

Opinion

OPINION

The terror attack at LynnMall last week has led to many questions about the refugee process in New Zealand.

In particular, there have been queries about why the terrorist was still in the country in view of the security threat he posed, claims that legally a "big mistake has been made" in failing to deport him and calls for law reform.

Given the terrible events of last week it is understandable that the system is being questioned. However, there are currently some significant misunderstandings about what the law says and how it operates.

To ensure a well-informed public discussion, it is helpful to set out the key elements of our refugee law system and the protections that are built into it.

Who can claim refugee status?

New Zealand's obligations flow from the 1951 Refugee Convention which was set up in the aftermath of World War II to ensure that people who experience the very worst forms of suffering have a path to safety and protection.

Specifically, the Refugee Convention provides that refugees are persons who are outside their home countries because they have a well-founded fear of being persecuted on account of their race, religion, nationality, political opinion or membership of a particular social group.

It is a high bar to be awarded refugee status – refugees must show that there is a real chance of them experiencing serious harm if they are returned home.

When can a refugee be deported?

There are a number of situations where a person can lose their refugee status and be deported including if they obtained their status on the basis of fraud, forgery, false or misleading representation, or concealing information.

Additionally, even if someone obtains their refugee status legitimately, they may still be deported if there are reasonable grounds for regarding them as a danger to New Zealand.

Are there any circumstances when someone who has lost their refugee status or been deemed a danger to New Zealand cannot be deported?

There are a very limited number of circumstances where someone who has either lost their refugee status or been deemed a danger to New Zealand will not be deported.

In line with international human rights law, we won't send someone back to their home country if there are substantial grounds for believing they will be in danger of torture, arbitrary deprivation of life, or cruel, inhuman or degrading treatment.

People who come within this category are known as "protected persons".

How does this all apply to the LynnMall terror case?

What we know so far about the LynnMall terrorist is that authorities had determined his original refugee application had been obtained by fraud and so he was liable for deportation.

He was, however, in the process of appealing this decision and there are reports that it was probable he would be found to be a protected person – that is someone who could not be deported because of the likelihood he would be killed or tortured on his return to Sri Lanka.

There will no doubt be some who question why we have this category of protected person especially in cases where a person poses a threat to national security.

It is, however, a mark of our commitment to human rights and human dignity that as a country we are not prepared to send people to their death or to face torture, one of the gravest forms of human rights abuse.

Going forward we should focus on how we can use the tools and laws we have to contain and address national security threats here rather than looking to change our internationally respected and vitally important refugee and protected person system.

• Dr Anna Hood is a senior lecturer at the University of Auckland's Faculty of Law specialising in public international law.