Husband Granted Protection Status Under ICCPR

OUTCOME: Allowed

This is an abridged version of the decision. Some particulars have been removed from or summarised in the decision pursuant to s151 of the Immigration Act 2009. Where this has occurred, it is indicated by square brackets. IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 802854−855 [NAME], [NAME]: KP (Sri Lanka)

Respondent: [redacted]

Before: [NAME] (Member)

Counsel for the Appellant: [redacted]

Counsel for the Respondent: [redacted] 2−3 December 2025

Date of Decision: 30 April 2026 ___________________________________________________________________

DECISION __________________________________________________________________ INTRODUCTION [1] [NAME] are citizens of Sri Lanka, of Sinhalese ethnicity. They are a husband and wife. They appeal against a decision of [RESPONDENT] and protection officer declining to grant either of them [RESPONDENT] status or [NAME] status. Broad Issues upon which the Appeal is to be Determined [2] [NAME] claim to be at risk of serious harm from two corrupt business identities in Sri Lanka: [NAME], and their associates. The risk is heightened because the [NAME] has recently laid criminal charges against both individuals and [NAME] believe the husband may be required to give evidence in court against them. [NAME] acknowledge through counsel that their claim does not fall within the ambit of the [RESPONDENT], but they seek to be recognised as [NAME] persons under the 1966 International Covenant on [NAME] (“the ICCPR”) or the [NAME].

2 [3] The Tribunal finds [NAME] to be credible and, for reasons given below, the husband is found to be a [NAME]. The wife is not, but in her ancillary humanitarian appeal, published simultaneously, she is found to have exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for her to be deported (see KQ (Sri Lanka) [2026] NZIPT 506992). [4] To address the statutory issues that arise in the [RESPONDENT] and [NAME] appeals, the Tribunal will outline first the evidence available, then the relevant law, before assessing the appeals. [NAME]’ CASE [5] [NAME] both gave evidence in person. Because their accounts overlap, they are outlined below as a single narrative, to avoid unnecessary repetition. The Tribunal also heard from [NAME], a Consultant [NAME] practising in Auckland. His evidence is also outlined below. Evidence of [NAME] [6] [NAME] are now in their 50s. The husband is Buddhist and the wife Roman Catholic, though these characteristics do not substantively inform their predicament. Their families lived near each other as they were growing up and they have been friends since childhood. They married during the mid-1990s and have two sons, both now adults. The elder son has lived in New Zealand for some years and is resident here. The younger son also lives outside Sri Lanka. The widowed mothers of both appellants continue to live in Sri Lanka, as do most of their siblings. [7] The husband left school in his mid-teens and found labouring work at the lowest rung of the tea industry. Over time he identified an opportunity to start his own company, in the mid-1990s, through which he purchased and graded tea for sale on the domestic market. In short, the company became successful, employing numerous locals and affording [NAME] and their family a prosperous lifestyle. [8] In mid-2008 the husband was approached by intermediaries of two [NAME] politicians, [NAME]. During a series of meetings and phone calls he was effectively given an ultimatum that unless he paid protection money to [NAME], he would have to hand over his business to another man in the tea industry. He

3 was told to pay Rs1,000,000 per month. About a quarter of that was towards the cost of a leasehold vehicle owned by [NAME]. The rest was to be paid in cash. The violent consequences of not meeting these demands were spelled out and the husband, feeling that he was left with little choice, began making payments. [9] About a year later, in mid-2009, the husband mentioned this financially crippling problem to a [NAME]. Initially the associate suggested that he could intervene with [NAME] on the husband’s behalf. However, he later changed tack and put the husband in touch with the [NAME] in charge of the [NAME] of the police. The husband met with the police to discuss his options. He was warned, frankly, that no one pursued complaints against [NAME] or their like. At some point he received a call from [NAME], who had obviously heard something of the husband’s discussions. He warned the husband to continue making payments. [10] [NAME] maintained contact with the husband. Initially, they told him they could do little to help him with the cash payments he was making. However, when they learned that he had records verifying the payments he had made towards the vehicle lease, they encouraged him to lodge a complaint against [NAME] alleging that they had extorted money from him on threat of death. Charges were subsequently laid in the [ADDRESS], and the husband stopped paying [NAME]. The husband received a call from [NAME] within days, but did not [NAME] the answer. [11] The [NAME] warned the husband that filing a complaint attracted a high risk and gave him the name of an officer he could contact if he was concerned at any time. The husband also began to [NAME] precautions such as reducing and changing his usual movements. After three or four months passed, with no apparent consequences, he returned to his previous practices. [12] In December 2009, the husband received a telephone call asking him to meet, to sample some tea, with a view to a commercial relationship. He did not know the caller, but the way he spoke Sinhalese gave the husband the impression that his first language was probably Tamil. They arranged a meeting the following day, at a [NAME] fast-food outlet. The husband attended the meeting with a police officer who had been assigned to him after he lodged his complaint, and with two of his trusted offsiders in his business.

4 [13] The men supposedly selling tea spoke fluent Sinhalese, which did not quite fit with the husband’s experience of the man he had spoken to. The husband eventually said that he did not wish to [NAME] the matter further. He and his associates made their way outside, towards the husband’s vehicle. The other men followed and drew firearms, directing the husband and his associates to a van that pulled alongside. Their hands were bound, they were blindfolded, and the husband was beaten and repeatedly punched. He was hit, hard, on the side of his head and he could feel blood running down his neck. The police officer, also bound and blindfolded, identified himself as police and the abductors then noticed that he had a firearm. The abductors told the husband and his associates that they were finished and referred to [NAME]. The husband has no doubt that his abduction was in response to the husband’s complaint and his refusal to continue paying protection money. [14] The husband and his associates were taken to a building where the husband was separated from the rest. He was given a clean shirt and allowed to wipe the blood from his face, but everything about his experience made him believe he was going to be killed. When he and his associates were moved the following day, the husband thought that they were going to be executed but, in the event, they were handed over to a cohort from the CID and taken to CID headquarters. [15] The husband believes the abduction was instigated by [NAME], and that if he had not been in the company of a police officer, he and the people with him would have been killed. Over the next few days, the husband was provided with appropriate medical care, but he was kept in detention and interrogated. [16] In the meantime, it had become apparent to the wife that the husband had gone missing. Employees had contacted her because they could not reach him. Throughout the evening, she continued to try to locate and contact him. When she went to the fast-food outlet, she saw his vehicle encircled in police tape. She later learnt he was still alive, but that he had been detained as part of an investigation. [17] During the next few days, the wife was able to see the husband in custody, briefly, and to engage counsel to represent him. He faced allegations of acting prejudicially to the national defence and public peace and also allegations that he was fraudulently selling low grade tea. He believes that these were fabricated at the behest of [NAME]. The husband was detained for approximately three months before being granted bail in February 2010.

5 [18] The charges relating to the national interest were not finally disposed of until 2020. The Tribunal will return to this below. During the interim the husband was required to surrender his passport. He was subject to onerous reporting obligations and the charges were brought before the court every three months or so to monitor progress towards trial. [19] The husband was also accused of selling tea that was unfit for consumption. His factory was closed and sealed while tests were run. He regarded all of this as harassment and without foundation, but additional charges were laid against his company in the [ADDRESS] at the end of 2011. The husband was advised to plead guilty, or risk having the company sealed until the charges were otherwise disposed of. He did so and paid a small fine, following which the CID officers removed the seals at the factory. [20] It took a little longer before the company’s licence to operate was restored but over time life returned to some kind of normality for [NAME]. They set about providing a life for their sons to shield the children from their own anxiety about what had happened. The husband was able to reopen the tea business but decided he needed to diversify to mitigate the impact of this type of corruption. He opened other businesses including a resort and an entertainment related business, with varying success. [21] In mid-2017, the husband had a further encounter which led him to close his tea factory for good. Several unidentified men repeatedly visited the factory and [NAME]’ home, asking as to his whereabouts. Eventually two men came to the factory and informed one of the employees that he had been sent by a person known as [NAME], a man with connections to the criminal underworld. The husband received a call the same evening from a man identifying himself as an associate of [NAME]. He was warned to expect a call from [NAME]. [22] The following day, [NAME] called in person and demanded payment of ₹2 million (approximately NZD 11,500). He referred to [APPELLANT]. The appellant was taken aback by the approach, although on one level he had been expecting it for years. He was told that armed men were in a vehicle opposite his home. He checked and there was a vehicle that appeared to fit the description. After consulting with a trusted advisor, the husband decided to pay the money. However, he decided to close the factory, fearing that the demands for money would continue. He began to sell the machinery and equipment at the factory and ceased operating soon after. He received a further call from [NAME] at some point but ignored the call. His life became more constrained. The boys were placed in

6 boarding school and the husband spent much of his time at home, allowing his staff to attend to many of the daily tasks that would previously have taken him out of the house. He also began to attend a Buddhist retreat in a remote area some distance from home, where he could meditate and reflect. [23] The wife contextualised this when recounting the impact of the husband’s experiences. He had been traumatised by the kidnapping in 2009, when he believed he was about to be executed. He had coped with the ongoing frustrations of the court process, but he was retraumatised by the further contact in 2017. He was also deeply affected by having to close his tea business, because he had employed many [NAME] families for years, and they depended upon the business for their incomes. The cumulative impact of all of this had left him deeply depressed. Reconnecting with his Buddhist roots at regular intervals became an important part of his coping mechanism. [24] The husband’s bail requirements were finally relaxed in 2018. However, another charge was filed against him in November 2019. It was alleged that he threatened a woman called [NAME]. When the husband was finally tried on the various offences in early 2020, [NAME] gave evidence in person. She denied that she had ever been threatened by him or anyone else and denied ever having made a complaint against him. The husband was acquitted on all charges. [25] A remaining charge had also been filed against the husband in late 2019, alleging that he made death threats against [NAME], another businessman with whom he had dealings for many years. He and [NAME] reconciled in February 2022, and the remaining charges were withdrawn. [26] In mid-2022, the husband was followed from his home by three unidentified men armed with knives or machetes. They chased him to a shop, where he hid until the men lost patience and left. He does not know who the men were or why they confronted him, but he believes they may have been connected to his earlier complaint against [NAME] and his associates. [27] [NAME] decided to come to New Zealand to visit their son and to remove themselves from their environment. In September 2022, they applied for visitor visas that were granted in November 2022, valid for six months from the date of their arrival in New Zealand in December 2022. In April 2023, their son helped them to obtain legal advice, leading to the lodging of their claims for [RESPONDENT] and [NAME] status in mid-May 2023.

7 [28] After interviewing [NAME] in early 2024, [RESPONDENT] status officer issued a decision dated 12 March 2025, declining their claims. It is from that decision that [NAME] appeal. Evidence of [NAME], [NAME] [29] Mr [NAME] is a consultant [NAME] with many years of experience in diverse professional settings in New Zealand and the United Kingdom. In addition to holding positions of responsibility in public health in New Zealand he also works as a consultant [NAME] and has a private practice through which he provides reports to courts and tribunals, including in immigration-related matters. He was instructed by counsel to provide general opinions about both appellants. His opinion about the husband was prepared in early 2024 and was presented to the [RESPONDENT] [NAME]. His opinion relating to the wife was prepared in anticipation of the appeal and is dated 7 August 2025. [30] Mr [NAME] interviewed the husband on several occasions in 2023. The husband spoke about his background in considerable detail and offered to elaborate on anything Mr [NAME] wished to explore. [31] In Mr [NAME] view, the husband's presentation was consistent with someone who had experienced traumatic events. He may have experienced some degree of post-traumatic stress disorder but had learned over time to cope with those symptoms. It was plausible that, by the time the husband was interviewed, the protective factors of being safe and in New Zealand meant that he was no longer displaying those characteristics. It is also plausible that, returned to a site of previous trauma, his symptoms could re-emerge. [32] Not long before [NAME] met with the wife, she had been assessed in New Zealand under the Mental Health Act, having had an acute stress reaction, possibly triggered by the decline decision of the RSU. Mr [NAME] noted that she had received appropriate treatment and that, by the time they met, she had begun to improve. Her self-care was more evident, she was no longer on medication, and she was more engaged in daily life. He stated that many people who have experienced an acute stress reaction improve over a period of a few days when properly treated. [33] [Withheld]

8 [34] In Mr [NAME] view the wife is likely prone to mental distress because she is relatively socially isolated and has limited personal support. He believes that this was the case in Sri Lanka as well as in New Zealand. She may be less resilient than most people and may be more likely to react in a similar way if she were to face deportation. Other Evidence and Submissions Received [35] The Tribunal and [NAME] had the benefit of copies of the Immigration New Zealand files relating to [NAME]’ claims for [RESPONDENT] and [NAME] status. In addition, [NAME] provided the following material through counsel, before the hearing: (a) On 19 November 2025, opening submissions of counsel, together with a bundle of documents numbered 1-11 including a joint updated statement of evidence of both appellants, a psychiatric report dated 7 August 2025 by Dr [NAME] and nine articles dated between 15 January 2021 and 19 June 2023. (b) On 19 November 2025, a bundle of documents numbered 12−28 including 17 articles and reports dated between 29 June 2009 and 7 November 2025. (c) On 29 March 2026 counsel forwarded a letter from a lawyer in Sri Lanka, advising that the husband would need to appear in person before the [ADDRESS] if he wished to obtain a copy of the complaint he lodged in 2009. [36] Counsel lodged additional submissions on 19 November 2025. It is submitted that [NAME]’ claims are credible and supported by numerous documents. These include bank statements, receipts, and court records. The claims regarding the 2009 extortion are credible and the evidence relating to the charges lodged against the appellant and his subsequent acquittal are also well documented. It is submitted that in the context of those verified events, [NAME]’ claims about the further interaction in 2017 and 2022 are credible. [37] It is also submitted that there are ongoing investigations in Sri Lanka, into corruption, that involve [NAME]. [NAME] may be compelled to provide evidence against them. [NAME] have a history of violence, intimidation and [NAME] influence and [NAME] would be at risk of retaliation or pre-emptive

9 action. The lack of effective protection means that [NAME]’ fear of being seriously harmed is well-founded and they cannot avoid or reduce the risk by relocating elsewhere in Sri Lanka. ASSESSMENT OF [NAME]’ CLAIMS [38] Under section 198 of the Immigration Act 2009 (“the Act”), on an appeal concerning [RESPONDENT] or protection status under section 194(1)(c), the Tribunal must determine, in the following order, whether to recognise either appellant as: (a) [RESPONDENT] under the 1951 Convention Relating to the Status of Refugees (“the [RESPONDENT]” or “the Convention”) (section 129); and (b) a [NAME] under the 1984 [NAME] (section 130); and (c) a [NAME] under the ICCPR (section 131). [39] [NAME] bear the responsibility of establishing their claims. Section 226(1) of the Act states that: “It is the responsibility of an appellant or affected person to establish his or her case or claim, and the appellant or affected person must ensure that all information, evidence, and submissions that he or she wishes to have considered in support of the appeal or matter are provided to the Tribunal before it makes its decision on the appeal or matter.” [40] In determining whether the appellant is [RESPONDENT] or a [NAME], it is necessary to identify the facts against which the assessment is to be made. Section 218(1) of the Act recognises that the Tribunal is a “specialist body” that has the role of deciding appeals and matters by: “… making findings of fact, applying the relevant law and making a determination.” [41] The Tribunal assesses the evidence presented in support of the appellant’s case, to make findings of fact, which will often require an assessment of the credibility of the evidence. This in line with New Zealand’s obligations under international law, the Act and the jurisprudence of the Supreme Court, Court of Appeal and High Court. It was discussed recently in [NAME] (Democratic Republic of Congo) [2025] NZIPT 802417. In this assessment, only evidence to which no credence can be attached is discounted. All other evidence is either accepted or afforded the benefit of the doubt and given appropriate weight. The Tribunal then

10 assesses the risk to the appellant based on its findings of fact; see [NAME] (Democratic Republic of Congo) at [78]. Assessment of the Evidence [42] The Tribunal finds [NAME] to be credible witnesses. The husband provided a written statement containing a high level of detail about his personal circumstances over a prolonged period. When giving evidence in person he was forthcoming and able to provide further detail about his background, his entry into the tea business, and the realities of extortionate demands made by people with [NAME] influence in Sri Lanka. He was able to point to supporting documents that corroborate various aspects of his account. These include: (a) Copies of Sri Lankan newspaper reports from several days in December 2009 referring to his arrest, together with translations of extracts from some of those articles. The husband was referred to by name in some, and some of the articles described the meeting at the restaurant that had preceded the arrest and the abduction. One extract refers to threats that the husband had received from “an underworld gang” [NAME] by a politician, and to payments he had made in the past by way of ransom. (b) A certificate from the International Committee of the Red Cross confirming that he was seen while in detention in a Sri Lankan jail in 2010. (c) Correspondence between 2009 and 2013 from himself and his legal advisors to politicians and human rights organisations concerning his abduction and charges laid against him under the Prevention of Terrorism Act, alleging involvement with a separatist Tamil independence movement against which the [NAME] had fought a civil war for nearly 30 years. [43] The Tribunal was also provided with extracts from a transcript of the husband’s trial in 2020. The transcript appears to be genuine, outlining in mundane detail the routine aspects of eliciting oral testimony. It includes extracts from the evidence in chief and cross examination of the senior officer who arrested the husband. It is apparent from the transcript that before the husband was arrested and detained on various charges in 2009 he had recently lodged a

11 complaint against [NAME] in the [ADDRESS]. It is also apparent that the senior officer was unaware that the husband had made that complaint. [44] The transcript also includes the evidence of [NAME], whose allegations were supposedly behind the filing of a further charge against the husband in late 2019. According to the transcript of her evidence to the Court, she had never complained about the husband, and she denied that he (or anyone) had ever assaulted her. [45] The oral evidence of the wife was also detailed. She described spontaneously, but not gratuitously, the impact upon the husband of his experiences since the 2009 abduction, during which he believed he was going to be executed. Over the years he has experienced traumatic reactions [withheld]. After he closed his tea business in 2017, he faced depression and grief for the loss of a business he had built, and which had provided employment for many [NAME] people. She described his attempt to simplify his life, to reduce his movements and to resort to Buddhist practices including meditation as a means of coping with the trauma, the grief, the fear that reappeared at times and the stress of the protracted criminal justice process to which he found himself subjected. He was continually required to attend court in connection with the charges he wished to defend. [46] It is also apparent that the wife experienced significant mental distress during the years immediately after the husband’s abduction and the Tribunal accepts the assessment of Dr [NAME] that she (and probably the husband as well) remain psychologically vulnerable in light of their past experiences. Dr [NAME] observation that the wife had become isolated in Sri Lanka over the years is also broadly consistent with the ongoing ordeal [NAME] claim to have experienced between 2009 and their departure in 2022. [47] Finally, the Tribunal notes that there is country information consistent with the husband’s assertions that [NAME] are [NAME] figures about whom allegations of criminality and violence have lingered for many years. Similar material was put forward about [NAME] (also known as DDD). What is also notable is that, while these two individuals have been a feature of [NAME]’ claims since they were lodged in May 2023 much of the country information about these two did not emerge until [withheld]. [NAME] have not sought to capitalise on events in the news. On the contrary, their accounts are consistent with contemporary journalism about past events.

12 [48] The Tribunal entertains some doubt about the incidents in 2017 and 2022, given the length of time that had elapsed since the husband’s predicament first came to light. However, the appellant’s evidence was broadly consistent, and they did not appear to be inclined to exaggeration. Further, the country information outlined below (in the assessment of their claims to be at risk of serious harm) suggests that it is not implausible that the husband should continue to attract adverse attention in the context of corruption, extortion and the possibility that he might be approached to give evidence against [NAME] [withheld]. In line with its practice over many years, the Tribunal affords [NAME] the benefit of any such doubt. [NAME]’ accounts are therefore accepted in their entirety. THE [RESPONDENT] [49] Section 129(1) of the Act provides that: “A person must be recognised as [RESPONDENT] in accordance with this Act if he or she is [RESPONDENT] within the meaning of the [RESPONDENT].” [50] Article 1A(2) of the [RESPONDENT] provides that [RESPONDENT] is a person who: “... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or [NAME] opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.” [51] In determining what is meant by “well-founded” in Article 1A(2) of the Convention, the Tribunal adopts the approach in [NAME] v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, where it was held that a fear of being persecuted is established as well-founded when there is a real, as opposed to a remote or speculative, chance of it occurring. The standard is entirely objective — see [RESPONDENT] No 76044 (11 September 2008), at [57]; HX (China) [2023] NZIPT 802189 at [55]–[60]. [52] “Being persecuted” requires serious harm arising from the breach of internationally recognised human rights, demonstrative of a failure of state protection — see DS (Iran) [2016] NZIPT 800788, at [114]–[130] and [177]–[183]. [53] The principal issues are, as explained in [RESPONDENT] No 70074 (17 September 1996), affirmed by the Tribunal in DS (Iran) [2016] NZIPT 800788, at [213]:

13 (a) Objectively, on the facts as found, is there a real chance of the appellant being persecuted in the country of nationality? (b) If the answer is yes, is there a Convention reason for that persecution? Objectively, on the Facts as Found, is There a Real Chance of [NAME] in Sri Lanka? [54] The husband was the proprietor of a [NAME]. From 2008 he was the target of organised criminal activity seeking the payment of protection money. After initially paying, he changed tack and laid a complaint against the [NAME] politicians behind the demands. The Tribunal does not know what became of those charges, but the husband was abducted in December 2009, detained, threatened and seriously assaulted over a couple of days. Those who took him also unwittingly kidnapped a police officer assigned to protect him. This may have saved his life, because they did not want to kill a policeman. Instead, the appellant was accused of various criminal offences, some more serious than others. He pleaded guilty to some of the minor charges in 2010 or 2011, was acquitted on more serious charges in 2020, after a protracted pre-trial phase and managed to have the last of the charges withdrawn in 2022. [55] In the meantime, the husband was subjected to new extortionate demands in 2017, leading him to close his primary business. More recently, after the last of the criminal charges against the husband were withdrawn in 2022, the husband was followed from his home by three unidentified men armed with machetes. [56] At this point it is worth noting that the Tribunal was provided with reports of the prevalence and impact of extortion in Sri Lankan daily and commercial life. Over many years, economic activity in Sri Lanka has been crippled through demands for money from “highly organised groups” from whom there is no escape: see [NAME] “Sri-Lanka: Crime – Something no one wants to touch” (24 April 2018) Asian Human Rights Commission. That report states that [NAME] police, politicians and bureaucrats “all got their share” and states that in such circumstances other crimes, many violent, [NAME] place with impunity. [57] An earlier report by the Asian Human Rights Commission confirmed that such issues were to the fore in mid-2009, around the time [NAME]’ predicament began: “Sri Lanka: Criminal Gangs and the failure to invest in the administration of justice” (29 June 2009). This refers to “many criminal gangs

14 operating around Colombo”, with participation from army deserters and suspended police officers. It continues: “From the point of view of civil society, the question of widespread crime in the capital city itself and the overwhelming influence that criminal gangs have in the city, is a matter of great public interest.... Such matters of public importance where the gangs play their role are matters relating to property and business transactions, matters relating to security on such issues as abductions and demands for ransom, the trade of drugs and illicit liquor and the issue of elections where criminal gangs play a dominant role in the organisation of [NAME] activities directed towards elections as well as determining the pattern of votes by way of intimidation.” [58] More recently the current government in Sri Lanka has begun to address corruption. One report from 2025 refers to a series of arrests targeting several prominent [NAME] figures accused of corruption and misappropriation. This is said to be in line with the government's “commitment to addressing longstanding issues of governance and restoring public trust”: see “Sri Lanka sees high profile arrests amid pressure on government to deliver” Economy Next (25 May 2025). [59] Among those targeted is [NAME] who is alleged to be implicated in fraud and faces criminal charges. [Relevant country information cited.] [60] [Withheld] [61] Yet another article records that [NAME] was already on bail over an allegation that he and [NAME] had threatened and assaulted [relevant country information cited]. [62] [Relevant country information cited, outlining the arrest of [NAME] as a suspect in respect of allegations of assault, referring to his criminal history and contemporary allegations, describing links between relatives of [NAME] who won [NAME] body representation and linking him to underworld activity. Additional material identifies [NAME] as an underworld figure arrested on criminal charges and subject to an Interpol Notice.] [63] [Withheld] [64] [Withheld] [65] [Withheld] [66] [Withheld] [67] [Withheld]

15 Assessment of the risk faced by the husband [68] The Tribunal has accepted that the husband has long been in the crosshairs of two [NAME] figures in Sri Lanka who have both, after many years of impunity in Sri Lanka, come under investigation by the authorities for their criminal offending and corruption. [69] One article outlines specific transactions made by [NAME] and refers to purchases made using funds held in 48 accounts maintained at public and private banks between 31 March 2010 and 31 March 2012. It appears from the very specific detail provided that the authorities obviously already have a significant body of evidence to support the charges that they have laid. [70] However, the transcript provided of the cross examination in 2020 of a police officer in connection with charges against the appellant, refers to the complaint the husband lodged in 2009 against [NAME]. It is not implausible that the authorities could seek to resurrect that complaint and approach the husband to give evidence in connection with that enquiry. It is equally plausible that the court processes will be protracted, as was the husbands. [71] [NAME] have a history of violence, intimidation and [NAME] influence and the husband may plausibly be at risk of retaliation or pre-emptive action in anticipation of his involvement, whether or not the authorities seek to call upon him. The Tribunal has accepted that he was approached again in 2017 and more recently in 2022, when he was menaced by armed men who followed him from his home. [72] The husband has previously been subjected to abduction and serious assault. His life was threatened by or on behalf of men who are apparently capable of having such threats carried out, irrespective of whether they are currently in Sri Lanka or currently subject to criminal charges. The risk of him being subjected to further such harm in future is sufficient that the Tribunal cannot find it to be so speculative as to be remote. It is apparent that the men in question are capable of wielding influence within the criminal fraternity in Sri Lanka whether or not they are offshore, and it is unlikely that the husband could seek adequate protection from the state. [73] The Tribunal finds that objectively, on the facts as found, there is a real chance of the husband being persecuted in Sri Lanka.

16 Assessment of the risk faced by the wife [74] The wife has not previously been approached by the men in question, nor has she been assaulted or threatened. She was not involved in the husband’s commercial enterprises and was not subjected to extortionate threats. She was not abducted, assaulted or threatened and she did not lay complaints with the authorities. She would not be of interest to the authorities in respect of evidence she might be able to give that would support charges against [NAME]. [75] In the circumstances, the risk of the wife being subjected to serious harm in Sri Lanka is so remote as to be entirely speculative. It does not rise to the level of a real chance. Conclusion on risk of being persecuted [76] Turning to the first principal issue identified, the Tribunal finds that objectively, on the facts as found, there is a real chance of the husband being persecuted in Sri Lanka. It finds also that there is not a real chance of the wife being persecuted in Sri Lanka. Is there a Convention Reason for the Persecution? [77] To be recognised as [RESPONDENT], a claimant must establish not only a well-founded fear of being persecuted, but also that their predicament is linked to one of the five Convention grounds. This requires that the Convention ground be a contributing cause to the risk of being persecuted; see [RESPONDENT] No 72635 (6 September 2002) at [173]. Counsel has conceded, and the Tribunal agrees, that none of the five Convention grounds are a contributing cause to the husband’s predicament.

Accordingly, his appeal is more appropriately addressed under the [NAME] criteria outlined below. Exclusion [78] There is nothing in the evidence before the Tribunal which raises any issue under Article 1F of the [RESPONDENT] in connection with either appellant. Conclusion on Claim to [RESPONDENT] [79] For the foregoing reasons, neither appellant is recognised as [RESPONDENT].

17 THE [NAME] [80] Section 130(1) of the Act provides that: “A person must be recognised as a [NAME] in New Zealand under the [NAME] if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand.” Assessment of the Claim under [NAME] [81] Section 130(5) of the Act provides that torture has the same meaning as in the [NAME], Article 1(1) of which states that torture is: “… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” [82] [NAME] rely upon the same evidence for this part of their appeals as they do for their claim to [RESPONDENT] status. The same findings of credibility and fact apply. [NAME] are not at risk of being subjected to severe mental or physical pain or suffering for any of the purposes prescribed in Article 1(1), with any of the prescribed involvement of a public official.

Accordingly, neither appellant is recognised as a [NAME] in New Zealand under the [NAME]. Conclusion on Claims under [NAME] [83] [NAME] are not [NAME] persons under section 130 of the Act. THE ICCPR [84] Section 131 of the Act provides that: “(1) A person must be recognised as a [NAME] in New Zealand under the Covenant on [NAME] if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand. ...

18 (6) In this section, cruel treatment means cruel, inhuman, or degrading treatment or punishment.” Assessment of the Claim under the ICCPR [85] [NAME] rely upon the same evidence for this part of the appeals as for the claims to [RESPONDENT] status. The same findings of credibility and fact apply. [86] The threshold for the gravity of the harm required under the ICCPR is not less than the threshold required to establish “being persecuted” in the context of the [RESPONDENT] (to which [NAME] status is complementary, not dominant). The harm must be serious: see AC (Syria) [2011] NZIPT 800035, at [82] and [NAME] v Attorney General [2007] NZSC 70, [2008] 1 NZLR 429. [87] For the reasons given, the husband is in danger of being arbitrarily deprived of life or subjected to cruel, inhuman or degrading treatment or punishment. The wife is not in danger of being arbitrarily deprived of life or subjected to cruel, inhuman or degrading treatment or punishment. [88] Accordingly, the husband is recognised as a [NAME] in New Zealand under the ICCPR. The wife is not. Internal Protection Alternative [89] Section 131(2) of the Act provides that: “Despite subsection (1), a person must not be recognised as a [NAME] in New Zealand under the Covenant on [NAME] if he or she is able to access meaningful domestic protection in his or her country or countries of nationality or former habitual residence.” [90] For meaningful domestic protection to be available in the proposed site of internal protection, a broadly similar inquiry to that which exists in relation to the [RESPONDENT] is required. In line with AC (Russia) [2012] NZIPT 800151, at [110], the following requirements must be established: (a) The proposed site of internal protection is accessible to the individual. This requires that the access be practical, safe and legal. (b) In the proposed site of internal protection there are no substantial grounds for believing that the appellant will be in danger of arbitrary deprivation of life or cruel, inhuman or degrading treatment or punishment. In this regard, the appellant cannot be expected to forego the exercise of human rights to avoid such harm.

19 (c) In the proposed site of internal protection there are no new risks of being exposed to other forms of serious harm or of refoulement. (d) In the proposed site of internal protection basic civil, [NAME] and socio-economic rights will be provided by the State. Application to the facts [91] It is not necessary to deal with this in any detail in these appeals because Sri Lanka is a relatively small island, and the agents of harm will likely be able to locate the husband regardless of where he resides. The Tribunal is not satisfied that the husband has a viable internal protection alternative available to him. Conclusion on Claims under ICCPR [92] For the reasons given, the husband requires protection under the ICCPR. He is a [NAME] within the meaning of section 131(1) of the Act. The wife does not require protection under the ICCPR. She is not a [NAME] within the meaning of section 131(1) of the Act.

CONCLUSION [93] For the foregoing reasons, the Tribunal finds that: (a) Neither appellant is [RESPONDENT] within the meaning of the [RESPONDENT] and therefore neither is [RESPONDENT] under section 129 of the Act; (b) Neither appellant is a [NAME] within the meaning of Article 1(1) of the [NAME] and therefore neither is a [NAME] under section 130 of the Act; (c) The husband is a [NAME] within the meaning of Articles 6 and 7 of the ICCPR and therefore is a [NAME] under section 131 of the Act. (d) The wife is not a [NAME] within the meaning of Articles 6 and 7 of the ICCPR and therefore is not a [NAME] under section 131 of the Act.

20 Certified to be the Research Copy released for publication.

[NAME] Member [94] The appeal of the husband is allowed. [95] The appeal of the wife is dismissed. Order as to Depersonalised and Abridged Research Copy [96] The disclosure of parts of this decision beyond the parties (and those to whom disclosure is permitted by section 151(2)) would tend to identify [NAME] and/or be likely to endanger the safety of the appellant or others. [97] Pursuant to clause 19 of Schedule 2 of the Act, the Tribunal orders that, until further order, the indicated parts of the decision are to be redacted by removal of names and particulars likely to lead to the identification of the appellant from the research copy of this decision. “[NAME]” [NAME] Member