Refugee Appeal Dismissed: Claim Found Manifestly Unfounded

OUTCOME: Dismissed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] [NAME] [NAME], [NAME]

Appellant: [redacted]

Respondent: [redacted]

Before: [NAME] (Member)

Counsel for the Appellant: [redacted]

Counsel for the Respondent: [redacted] 15 April 2026 __________________________________________________________________

DECISION ________________________________________________________________ INTRODUCTION [1] This is an appeal against a decision of [RESPONDENT] and protection officer declining to grant [RESPONDENT] status or [NAME] status to the appellant, a citizen of [APPELLANT]. The Principal Issues on Appeal [2] The appellant claims to have a well-founded fear of being persecuted in [APPELLANT], or to be in danger of being subjected to another qualifying form of harm there, at the hands of his former business partner, or others acting on his behalf, so as to compel the appellant to sell him the appellant’s shares in their business. [3] The principal issues to be determined are: (a) whether the claim by the appellant is manifestly unfounded and, if so, whether the Tribunal should offer the appellant an oral hearing; and

2 (b) whether the evidence establishes that there is a real chance of his being persecuted or suffering another form of harm entitling him to be recognised as [RESPONDENT] or a [NAME] under the Immigration Act 2009 (“the Act”). Decision Not to Offer an Oral Hearing [4] Ordinarily, the Tribunal must provide an oral hearing to an appellant claiming [RESPONDENT] or [NAME] status. However, an oral hearing may be dispensed with if the appellant was interviewed by the [RESPONDENT[NAME] in the course of determining the claim at first instance and the Tribunal considers that the appeal is manifestly unfounded or clearly abusive; see section 233(3) of the Act. [5] The appellant was interviewed by the [RESPONDENT[NAME]. [6] On 13 March 2026, the Tribunal wrote to the appellant’s counsel. It advised that it considered that the appeal was, prima facie, manifestly unfounded and, if that was the case, it could be determined without an oral hearing. The Tribunal set out a brief summary of the appellant’s claim. It noted that his claim centred on the sale of the appellant’s shares in a company he had jointly established to an [NAME], one of his two business partners. Their business had been badly impacted as a result of the Russian invasion of Ukraine. [NAME] had made threats to kill or harm the appellant. He has sent groups of young men to harass the appellant, including having them visit an employer for whom the appellant had been working while also working for the company to persuade him not to offer the appellant any further work. [7] As to this, the Tribunal noted that the claim appeared manifestly unfounded because of the aggregation of a number of overlapping matters, namely: (a) There is no human right to property such as shares. Nor was there any evidence to establish that there will be a risk at the real chance level of any breach of the rights which do exist to support the enjoyment of property. (b) It did not appear that the appellant had indicated anything in the background circumstances which would support a finding that any one of the five Convention grounds has, or will, in any way contribute to his predicament. For this reason alone, his [RESPONDENT] claim must fail.

3 (c) The past harassment of the appellant by [NAME] was in 2023 and did not appear to have resulted in the appellant suffering serious harm arising from a breach of his human rights. The risk of serious harm for the appellant in the future is no more than speculative. (d) Further, the gravity of harm involved, even taking the events cumulatively, fell well short of being serious, in the context of requiring the surrogate protection of another state. (e) The appellant appeared to have a viable internal protection alternative by moving from Z district where he lived to Kathmandu or the Greater Kathmandu valley. [8] The Tribunal gave the appellant the opportunity to respond by 24 March 2026. [9] On 20 March 2026 the Tribunal received a further statement (18 March 2026) from the appellant disputing this preliminary assessment. In particular: (a) The appellant points to events after he arrived in New Zealand in July 2023. He states that [NAME] came to the family home on 2 July 2025 and presented his father with two further cheques (dated 3 August and 13 September 2025) which “turned out to be another scam”. [NAME] came again on 18 January 2026, when he presented a cheque post-dated to 16 October 2026 which, the appellant states establishes that [NAME] “is not acting genuinely” and is continuing to “manipulate the situation”. [NAME] also on this occasion threatened to have the appellant kidnapped from the airport and killed. The appellant disputes the Tribunal’s characterisation of the threats to him as being “empty”. Rather, these more recent threats show that the risk to him is escalating. (b) The appellant disputes that he can find protection by moving to Kathmandu or its surrounding valley. [NAME] has in the past sent men to his place of work who told him to return to Z district and resume his work for the company. These men again went to this same place of work in August 2023, after he had arrived in New Zealand to warn his employer against rehiring him.

4 (c) As regards to state protection, the appellant states that he and his family have not reported the threats to the police as the likely reporting obligations in respect of the resulting investigation would place them under stress, particularly his mother who suffers from mental illness. “Additionally”, he cannot rely on police protection due to [NAME]’s political connections. He states that such political connections “often prevent [NAME] from acting against [NAME] [NAME] individuals”. (d) As regards to the issue of a nexus to a Convention ground, the appellant asserts the Convention ground of political opinion applies. He asserts this to be the case because of “my political stance refusing to comply with a [NAME]’s extortion”. [10] On 25 March 2026, the Tribunal received written submissions from counsel in response to the Tribunal’s letter and a bundle of country information. In summary, counsel contends that the appellant’s claim is not manifestly unfounded because: (a) The statutory test for “manifestly unfounded” sets a deliberately high threshold. It is not enough that the Tribunal considers the appeal may be unlikely to succeed on the papers; the question is whether, on its face, the appeal is plainly without substance and can safely be resolved without testing evidence. (b) The Tribunal’s initial reasoning in this matter entails a series of evaluative judgements across several key issues, including the seriousness of harm, the risk of harm occurring in the future, the credibility and plausibility of the appellant’s account, the adequacy of state protection, and the possibility of internal relocation. These are complex and interrelated considerations that are central to determining the merits of the [RESPONDENT] claim and warrant an oral hearing. (c) The appellant has provided updated evidence, notably including explicit threats of killing and kidnapping. This new evidence directly engages with the Tribunal’s assessments and significantly impacts the evaluation of the case. Counsel submits that “considering these developments it is inappropriate to dispose of the appeal summarily or without further inquiry”.

5 (d) When considering the practicality and safety of seeking police protection, the appellant’s mother's condition may impede the family's ability to engage effectively with [NAME] and further complicate the appellant’s options for safeguarding himself against harm. (e) As regards to the issue of nexus to a Convention ground, the harm feared does not arise merely from a commercial disagreement, but from the appellant’s refusal to submit to demands enforced through political influence, intimidation, and coercion by a [NAME]. (f) As regards to internal protection alternatives, counsel submits that it is not sufficient to rely on the size of a city such as Kathmandu or the general availability of employment opportunities to establish internal relocation as a viable protection alternative. The critical inquiry must focus on whether the appellant can reside openly and safely in the proposed location, without being subjected to tracking, coercion, or serious harm, and with access to meaningful protection. Given the appellant’s evidence is one of escalating threats over time, including in Kathmandu, a hearing is necessary to determine whether this is the case. [11] For these reasons, counsel submits that the appeal is not manifestly unfounded and requires an oral hearing. Whether the appeal is manifestly unfounded [12] The Tribunal is satisfied that its preliminary view, set out in its letter to the appellant, is correct and the appeal is manifestly unfounded. At the outset, it is to be recalled that the appellant has already had the benefit of a multi-staged first instance process which has afforded him multiple opportunities to enable his account to be comprehensively put forward; see here ZB (India) [2025] NZIPT 802975 at [15]–[16]. This has been augmented by the opportunity to provide further information in response to the Tribunal’s letter of 13 March 2026, which he has done. Bearing this in mind, as to counsel’s submissions in regard to the need for an oral hearing:

6 As regards to the high threshold required for an appeal to be regarded as manifestly unfounded [13] This is settled law and is accepted. The Tribunal notes that the appellant has corroborated his claim to have been in business with [NAME] by photographic evidence of himself with [NAME] and [NAME] (the [NAME] business partner) on the day their company opened its shop, of the product the company sold, and of is manufacture. Company financial documents have been produced. However, this notwithstanding, for the reasons set out more fully below, the Tribunal is satisfied that this high threshold is met. [14] Counsel submits that the Tribunal’s “initial reasoning…entails a series of evaluative judgments across a range of areas”. This is correct, but the submission does not explain why these evaluative judgements mean that the claim is not properly to be regarded as manifestly unfounded. The whole purpose of the letter of 13 March 2026 was to advise the appellant that even accepting everything that he had said was true, the Tribunal’s prima facie evaluation was that his claim could not succeed because his account of his predicament could not satisfy specific underlying legal principles/tests which determined his entitlement to protection under sections 129, 130 or 131. See, here, discussion in CA (India) [2026] NZIPT 803207 at [12]. As regards to the new information provided on appeal [15] Counsel submits that the “updated and serious nature of the threats alleged by the appellant renders these issues unsuitable for determination solely on the written record”. However, the submission does not explain why. The new information is accepted as credible for the purposes of the appeal; see YT (India) [2025] NZIPT 802899 at [9](d). What this new evidence means in terms of the appellant’s entitlement to protection is taken into account, to the extent that it is relevant, in the assessment of the appellant’s case which follows. As regards to state protection [16] Counsel’s submissions on the appellant’s mother’s illness as it relates to the availability of state protection are noted, but are, with respect, misplaced. At the core of [RESPONDENT] status determination is an exercise in hypothesis which requires a decisionmaker to postulate the claimant as if is they were still in their country of nationality and evaluate whether the claimant’s hypothesised presence there would give rise to a predicament being persecuted; see GD (China) [2021]

7 NZIPT 801793–794 at [41]. If so, the claimant will be outside their country of nationality owing to a well-founded fear of being persecuted as required under Article 1A(2) of the [RESPONDENT]. What this means in terms of counsel’s submission is that it is not the capacity of the appellant’s parents to seek police protection for the appellant which is relevant, but why the police would refuse the appellant protection were he to approach the police himself on the basis of his hypothesised presence in [APPELLANT]. [17] More relevant is the submission that, taking into account the assertion that [NAME] is “[NAME] [NAME]” the claim cannot be regarded as unfounded because of country information relating to the prevalence of corruption in the bundle of country information provided; see for example [NAME] in the World 2024: [APPELLANT] (February 2024) which refers to corruption being “endemic” in [APPELLANT]; [NAME]’s 2025 report notes that “[[APPELLANT]’s] anticorruption authority has been active in pursuing official misconduct, though corruption persists”. However, none of the country information directly refers to corruption by local police officers in the discharge of their duties to investigate complaints (as opposed to politicians). Further, as is explained more fully below, even accepting that the country information refers to ‘endemic’ corruption in [APPELLANT], this does not of itself mean that the appellant has sufficiently established evidentially a basis for concluding a future failure of state protection in circumstances when he has not even tried to be seek police protection prior to leaving [APPELLANT] and seeking protection in New Zealand. Systemic political corruption is not the same as operational corruption by [NAME] officials. Proof of the former is not proof of the latter. As regards to nexus to a convention ground [18] Counsel’s submissions are noted but for the reasons explained below misconstrue the nature of the nexus requirement and thus do not persuade that the [RESPONDENT] claim cannot be regarded as manifestly unfounded. As regards to the internal protection alternative [19] The Tribunal accepts counsel’s submission as to the proper focus of the internal protection alternative inquiry. However, this inquiry does not happen in the abstract but rather is informed by the relevant legal test. For the reasons set out below, nothing in the information provided by the appellant, when assessed

8 against the relevant legal test, provides any basis for finding that he does not have a viable internal protection alternative available to him Conclusion on exercise of discretion to offer oral hearing [20] Given the above, counsel’s submissions do not persuade the Tribunal that an oral hearing is necessary. Pursuant to section 233 of the Act, it therefore determines not to afford the appellant an oral hearing. The appeal will be determined on the papers. [21] Given that the same claim is relied upon in respect of all limbs of the appeal, it is appropriate to record it first. What follows is a summary of the details as recorded in the appellant’s Confirmation of Claim to [RESPONDENT] and Protection Status (“Confirmation of Claim”) form, the decision of the [RESPONDENT[NAME] (which incorporated any changes or corrections which the appellant made to the record of his interview), other material contained in the appeal file including counsel’s submissions, the bundle of country information and the appellant’s updated statement. THE APPELLANT’S CASE [22] The appellant was born in Z district, Y province, [APPELLANT], in mid-1998. His parents remain living at the family home. His mother is unwell with mental illness and his father is her primary caregiver. The appellant has two siblings. [23] After completing his schooling in 2017, the appellant worked as a waiter at his family's restaurant until 2019, at which time he was hired in a marketing role in a company (“his employer”) in a village in another district. [24] In February 2020, [NAME] visited the appellant in his home and proposed they start a business together. The appellant agreed to his business proposal and [NAME] was later added as the [NAME] and final business partner. [25] From February 2020 to October 2021, the three men planned their business. They planned to divide their shares in the company into equal thirds. The appellant borrowed NPR1 million from his parents to fund his share of the business. The appellant also borrowed NPR1.6 million from [COMPANY] with [NAME]. The three men registered their company (“the company”). The company was located in the X municipality, Z district.

9 [26] In September 2021, the company was launched and began operations. The appellant's main role was to market and promote their product to other businesses. The appellant and his business partners employed five people. The business was successful, and the company grew to an annual turnover of NPR8 million. [27] In July 2022, while still working at the company, the appellant returned to work at his employer. [28] In August 2022, the company began to operate at a loss due to supply shortages and rising prices after [NAME] invaded Ukraine. [29] In November 2022, the appellant and [NAME] wanted to close the company which continued to operate at a loss. They informed [NAME] that they wanted to sell the company's assets to pay off the business’ [COMPANY] loan. [NAME] disagreed with them and wanted to continue operating the company. The appellant and [NAME] stopped working in the business and [NAME] continued operating it on his own. [30] In December 2022, due to [NAME]’s frequent visits to the appellant at his parents’ home regarding the company, the appellant left Z district and moved to Kathmandu. In Kathmandu, the appellant worked in a marketing role at his employer’s office in a village in the Greater Kathmandu valley. [31] In March 2023, the company ceased to operate. [NAME] asked the appellant and [NAME] to transfer their shares to him. [NAME] offered to [NAME] the shares as a loan and pledged to repay the appellant and [NAME] for their shares over time. The appellant and [NAME] refused to sell their company shares to [NAME]. [32] In late May 2023, the appellant made an application for a visitor visa to New Zealand. [33] In June 2023, [NAME] used his political influence to send five young men to harass the appellant while he was working. The men told the appellant that he should be back in Z district working for the company. The appellant continued to work for his employer. [34] On 5 June 2023, the appellant's application for a visitor visa to New Zealand was approved. [35] On 5 July 2023, the appellant arrived in New Zealand at Auckland International Airport.

10 [36] In mid-July 2023, [APPELLANT] saw that the appellant was in New Zealand from the pictures he posted on [NAME]. [APPELLANT] became angry as he assumed the appellant had moved to New Zealand permanently to avoid selling his shares to him. [NAME] visited the appellant's family home in Z district and threatened to make it difficult for the appellant to work in [APPELLANT] and that he would cut off his limbs if he were to return. [37] In the last week of July 2023, [NAME] called the appellant via [NAME] and again asked him to transfer his company shares to him. [NAME] again threatened to cut off the appellant's limbs if he did not sell his shares to him when he returned to [APPELLANT]. [38] In August 2023, [NAME] used his political influence again to send five young men to the appellant's former place of employment. The men demanded the appellant's former employer not to rehire the appellant if he were to return to [APPELLANT]. [39] In September 2023, [APPELLANT] visited the appellant's family home, spoke to the appellant's father and demanded the appellant transfer his shares to him. [NAME] threatened that he would harm the appellant if he were to return to [APPELLANT] and did not transfer his shares. [40] In the same month, [NAME] called the appellant and again asked him to transfer his company shares to him. The appellant agreed to sell his shares to [NAME] if he received payment for them right away. [NAME] agreed to this. [41] In October 2023, [NAME] emailed the appellant a transfer document for the company shares. [NAME] also visited the appellant's family home and hand-delivered the appellant's father a cheque in payment for the shares. While talking to the appellant's father, [NAME] demanded that the appellant sign the share transfer document immediately now that he had delivered the cheque. [42] A week later, [NAME] went to the [COMPANY] to cash [NAME]’s cheque. However, the [COMPANY] could not process the cheque as [NAME]’s account did not have sufficient funds. [NAME] told him what had happened. The appellant then realised [NAME] was attempting to commit fraud. The appellant decided not to sign the share transfer document or continue with the sale of his shares to [NAME].

11 [43] Also in October, [NAME] returned to the appellant's family home and attempted to hand a new cheque to the appellant's family. [NAME] told the appellant’s family to tell the appellant to sign the share transfer document as he had now provided the cheque. [44] On 21 December 2023, the [RESPONDENT[NAME] received the appellant's Confirmation of Claim form dated 18 December 2023. [45] In July 2024, the [COMPANY] issued a [NAME] notice in a newspaper regarding the NPR1.6 million amount owed by [NAME] and the appellant. At the same time, an employee of the [COMPANY] visited the appellant's family home to give notice of the amount owed by [NAME] and the appellant. The appellant came to learn at this time that [NAME] had changed the name of the company. [46] In October 2024, [COMPANY] issued a second notice in the newspaper regarding the NPR1.6 million amount owed by [NAME] and the appellant. An employee of the [COMPANY] again visited the appellant's family home to give notice of the amount owed by [NAME] and the appellant. [47] On 24 June 2025, the [RESPONDENT[NAME] declined the appellant’s claim. [48] On 2 July 2025, [NAME] presented [NAME] with two further cheques (dated 3 August and 13 September 2025) which “turned out to be another scam”. He came again on 18 January 2026 and presented [NAME] with a cheque post-dated to 16 October 2026. [NAME] also threatened to have the appellant kidnapped from the airport and killed. ASSESSMENT [49] Under section 198 of the Act, on an appeal under section 194(1)(c) the Tribunal must determine (in this order) whether to recognise the 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

12 (c) a [NAME] under the 1966 International Covenant on Civil and Political Rights (“the ICCPR”) (section 131). [50] In relation to a claim to be recognised as a [NAME], section 198(1)(c) of the Act requires that the Tribunal must also determine matters analogous to the Article 1F exclusion clause in the [RESPONDENT]. In this appeal, no exclusion issues arise. Assessment of the Appellant’s Evidence [51] For a claim determined to be manifestly unfounded (that is to say, incapable of success because the person does not meet the requirements of Article 1A(2) of the Convention or sections 130 or 131 of the Act), the decision-maker is required to treat the claim as credible for the purposes of the assessment. As the appellant has not been offered an oral hearing, the details of his claim as recorded above are accepted for the purposes of the appeal. THE [RESPONDENT] [52] Section 129(1) of the Act provides that: [NAME] must be recognised as [RESPONDENT] in accordance with this Act if he or she is [RESPONDENT] within the meaning of the [RESPONDENT]. [53] Article 1A(2) of the [RESPONDENT] provides that [RESPONDENT] is [NAME] who: ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political 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. [54] 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 (HCA), 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]; and HX (China) [2023] NZIPT 802189 at [55]–[60].

13 [55] “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]. [56] In terms of [RESPONDENT] No 70074 (17 September 1996), affirmed by the Tribunal in DS (Iran) [2016] NZIPT 800788 at [213], the principal issues are: (a) Objectively, on the facts as found, is there a real chance of the appellants being persecuted in the country of nationality? (b) If the answer is yes, is there a Convention reason for that [NAME]? Lack of Nexus to a Convention Ground Fatal to [RESPONDENT] [57] In cases of this nature, it is appropriate to deal with the second issue first as there is no evidence whatsoever to establish the mandatory nexus to Convention ground. This alone is fatal to the appellant’s [RESPONDENT] claim and makes it manifestly unfounded. [58] In every claim for [RESPONDENT] status the claimant must establish that their predicament has a sufficient nexus 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]. While the standard of causation is low, there must nevertheless be some compelling evidence to establish that it exists. As observed in ZB (India) [2025] NZIPT 802975, at [52], in relation to a ‘[NAME]’ claims: It is sometimes argued that a [NAME]’s religion, ethnicity or political affiliation is a contributing cause of the risk from a [NAME] (and their associates) perhaps belonging to a different – often majority – social group. Such submissions are typically misplaced because, at best, they involve the identification of two evidentially established ‘dots’ – a risk and a [NAME] characteristic – but dots which nonetheless remain unconnected by way of any evidence of the required nexus. Moneylenders simply want to be repaid and there tends to be an absence of any compelling evidence establishing that any risk of persecutory harm the [NAME] may face is somehow different to those faced by a [NAME] who does not possess the Convention-relevant characteristic so as to provide a sufficient evidential base to support a finding of nexus, even to the low ‘contributing cause’ standard. [59] In this instance, although not a [NAME] case, such evidence is equally missing. The appellant and counsel assert that [COUNSEL] is [NAME] [NAME] and that because he is being intimidated and coerced by a [NAME] this amounts to a nexus to the Convention of a political opinion.

14 [60] These submissions fundamentally misconstrue the nature of the nexus requirement under the [RESPONDENT]. It is not enough to establish the agent of [NAME] has a political opinion. On its own, this is not evidence of a nexus — the ‘for reasons of’ component of the [RESPONDENT] definition. The political opinion that is the focus here is that of the claimant; not the agent of [NAME]. The agent of [NAME]’s political opinion is only relevant insofar as its frames a contrary opposing opinion actually possessed by the claimant or imputed to him or her which explains why the predicament of the appellant arises. Of course, this need not be the sole or even dominant cause, but there must be evidence of some political opinion (actual or imputed) of the claimant which explains why there is a risk of persecutory harm at the real chance level. [61] Here, even accepting the truth of the appellant’s assertions of [NAME]’s political connection, this is not evidence that there is any nexus to any political opinion the appellant may have. The appellant told the [RESPONDENT[NAME] that his only political activity was in 2016 as student volunteer on his college campus for the “[NAME]”. He had encountered no problems in [APPELLANT] because of this involvement which he gave up to concentrate on his business activities. [62] [NAME] just wants the appellant’s shares; the appellant’s political views are irrelevant. So also, with the issue of police inaction. The police are, on the appellant’s account, not going to protect him because they are in cahoots with [NAME], not because of any political opinion which the appellant may have. [63] There is by some considerable margin, a paucity of evidence to establish that the appellant’s predicament has anything to do with any Convention ground. [64] The appellant can therefore only be entitled to a protection under the Act if his predicament gives rise to risk of harm falling within the scope of sections 130 or 131 danger threshold. There are issues with each which contribute to this claim being manifestly unfounded. [NAME] THE [NAME] AND THE ICCPR [65] The appellant’s claims under sections 130 and 131 of the Act cannot succeed.

15 The Claim under [NAME] [66] Section 130(1) of the Act provides that: [NAME] 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. [67] 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 [NAME] for such purposes as obtaining from him or a [NAME] information or a confession, punishing him for an act he or a [NAME] has committed or is suspected of having committed, or intimidating or coercing him or a [NAME], 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 [NAME] 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. [68] It is self-evident that the appellant’s claim under the [NAME] cannot succeed given the defining of torture under the Act. There are no substantial grounds for believing that the appellant is in danger of being subjected, in [APPELLANT], to severe mental or physical pain or suffering for any of the prescribed purposes with any of the prescribed involvement of a [NAME].

Accordingly, the appellant is not recognised as a [NAME] in New Zealand under the [NAME]. [69] This only leaves his claim under the ICCPR. The Claim under the ICCPR [70] Section 131 of the Act provides that: (1) [NAME] must be recognised as a [NAME] in New Zealand under the Covenant on Civil and Political Rights 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. ... (6) In this section, cruel treatment means cruel, inhuman, or degrading treatment or punishment. [71] As to what constitutes cruel treatment, not all harm qualifies. As noted in [NAME] (Syria) [2011] NZIPT 800035 at [83], this requires harm of a minimum degree of intensity. The harm must also exist at the “in danger” threshold.

16 [72] [NAME] has in the past made threats to cut off the appellant’s limbs, and more recently to have the appellant kidnapped from the airport and killed. These are forms of harm amounting in law to cruel treatment and the arbitrary deprivation of life and thus in principle fall within the scope of section 131. [73] However, there is, by some margin, an absence of compelling evidence to establish that the appellant is “in danger” of being subjected to these harms. First, and putting aside the self-defeating nature of broadcasting this threat to the appellant (and thereby making it almost certain that he would not willingly fly back to [APPELLANT]), there is nothing in the past conduct of [NAME], nor men acting for him which indicates any propensity to act on these threats of physical harm, let alone murder. They have been content in the past simply to harass appellant at his place of work and interfere with his employment. Both the appellant and his employer appear to have ignored the demand without repercussion. [74] Second, and more fundamentally, if the appellant is truly worried about these latest threats, then he could complain to the Nepalese police. The appellant’s assertion that the police would not act because of [NAME]’s political connections are noted but, even if this is the appellant’s genuine subjective belief, it is of little intrinsic weight in terms of the actual availability of state protection to him. Such a bare assertion is a thin basis upon which to found a conclusion that there would be a failure of state protection such as would create a risk of the appellant being killed or subjected to cruel treatment at the ‘in danger’ threshold. As observed by Judge Treadwell in [NAME] (India) [2026] NZIPT 802959 at [40](a): [40] The evidence does not establish a risk of any such harm any higher than mere speculation or a remote or random possibility for the following reasons: (a) States are generally presumed capable of protecting their citizens. This point has been emphasised in New Zealand’s [RESPONDENT] jurisprudence for over 30 years. In [RESPONDENT] No 523/92 (17 March 1995), the [RESPONDENT] Authority cited with approval the findings of La Forest J in Canada (Attorney-General) v [NAME] [1993] 2 SCR 689, 709 (SC:Can), stating: Addressing the issue whether the claimant must first seek out the protection of his or her state before claiming [RESPONDENT] status, the Supreme Court at 723 accepted that in principle there cannot be said to be a failure of state protection when a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming. The Authority held that clear and convincing confirmation of a state's inability to protect must be provided. Absent such evidence, the claim should fail as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty.

17 [75] To be clear, the presumption of state protection as applied in New Zealand, as Judge Treadwell has noted, is not so much a hard-edged principle of international protection law upon which claims for protection will inevitably founder, but an evaluative starting point which frames a claimant’s statutory responsibility under section 226 of the Act to establish a risk of a future failure of state protection. [76] Judge Treadwell in that appeal noted that the appellant had provided no evidence of any effort or attempt by him to access state protection, nor sought the assistance of the courts. His Honour acknowledged that “uneven policing responses, both as a result of corruption and as a result of incompetence, poor training or under-resourcing” featured in general country information is not sufficient to displace the appellant’s obligation to look to domestic protection in the first instance. He concluded that (at [40](b)): The failure of the appellant to [NAME] the most basic of steps to engage his local police means that he has not rebutted the presumption of state protection as it applies to his particular circumstances. [77] The same logic applies here. The appellant has not taken the most basic of steps to try look for protection for [APPELLANT]. The bare assertion by him of some political connection is of itself insufficient to displace the presumption of state protection, particularly where the problems are not political in nature and of a commercial nature. The presumption of state protection as it applies to the police not acting on complaints of intimidation and coercion is not rebutted by general country information as to ‘endemic’ corruption, and protests by [NAME] against the entrenched corrupt practices of the political class. As noted above, systemic or structural political corruption is not the same as orientational police corruption. [78] The only reference to corruption as it relates to the police in the bundle of country information is in the United States Department of State 2023 Country Reports on Human Rights Practices: [APPELLANT] which notes, at section 4, only that (verbatim): “[c]orruption remained a problem within police, the Armed Police Force, and local governments”. Quite how widespread, corruption is within the police, what form(s) it takes and in what context it arises is not elaborated on; nor is it in any of the other country information filed in support of the claim. The quite extraordinary claim that [NAME] will be able to engineer the appellant’s kidnapping from the airport (which could only happen if he were able to be forewarned by an official that the appellant had arrived at immigration control and to ensure he be detained while [NAME] arranged for his kidnaping that day) is not supported by any

18 country information establishing this has ever occurred or is objectively a possibility given corruption among [NAME]. [79] The appellant bears the statutory responsibility to establish his case; this responsibility applies just as much to providing a compelling evidential basis to support finding of a future failure of state protection as with any other core principle of international protection law. This will not easily be discharged only by reference the appellant’s subjective perceptions particularly in cases of harm from [NAME] where, as here, the appellant has not tried to seek protection from the police (and/or other relevant agency) in their country of nationality, nor provided any compelling reason, supported by persuasive country information, for not doing so. [80] In summary, there is no compelling evidential basis on which to conclude that the appellant is actually in any ‘danger’ of being harmed by way of cruel treatment (as that is defined in section 131(6) of the Act) by [NAME] let alone his being ‘arbitrarily’ deprived of his life, nor by anyone acting on his behalf. Internal Protection Alternative [81] Although not necessary to deal with this issue given the above finding, the Tribunal is also satisfied that the claim is manifestly unfounded because the appellant has a viable internal protection alternative and cannot be regarded as a [NAME] under the Act; see section 131(2). [82] It is not a matter of a claimant’s convenience or of the attractiveness of the place of relocation. See Butler v Attorney-General [1999] NZAR 205, 217−218 and see also [RESPONDENT] No 71684/99 (29 October 1999), at [47] onwards. [83] It is the appellant’s responsibility to establish that there is no viable internal protection alternative; see [RESPONDENT] and Protection Officer v BA (Nigeria) [2022] NZHC 706, at [21]. [84] As set out in [RESPONDENT] No 76044 (11 September 2008) and BI (Afghanistan) [2018] NZIPT 801220, at [50]–[51], and [NAME] (Russia) [2012] NZIPT 800151, an internal protection alternative requires that: (a) The proposed site of internal protection must be accessible to the individual. This requires that access be practical, safe and legal.

19 (b) In the proposed site of internal protection, there is no risk of being persecuted for a Convention reason. In this regard, the appellant cannot be expected to forego the exercise of human rights to avoid being persecuted. (c) In the proposed site of internal protection, there are no new risks of being persecuted or of being exposed to other forms of serious harm or of refoulement. (d) In the proposed site of internal protection, basic norms of civil, political and socio-economic rights are respected by the state. In this inquiry, reference is to be made to the human rights standards suggested by the [RESPONDENT] itself. [85] The Tribunal is satisfied that the appellant could access and reside safely in Kathmandu or in the Greater Kathmandu valley. Kathmandu is a large city with a population of over 800,000 persons according to the 2021 census. The appellant has previously lived in Kathmandu, and he worked at his employer’s office in a marketing role in a village in the Greater Kathmandu valley. It is accepted that men acting for [NAME] have harassed his former employer, but this is all they have done. The appellant has worked in his family restaurant and in marketing. He will be able to find employment in Kathmandu, or in the Greater Kathmandu valley, if not for his previous employer, then in another job. The evidence does not point to any risk there of other forms of harm, or [NAME] for other reasons. The basic human rights recognised by the [RESPONDENT] are available there. Those alternative places of relocation all appear to meet the criteria for an internal protection alternative. Conclusion on Protection Claim under the Act [86] For the above reasons, the appellant is not a [NAME] under sections 130 or 131 of the Act.

CONCLUSION [87] For the foregoing reasons, the Tribunal finds that the appellant: [redacted] is not [RESPONDENT] within the meaning of the [RESPONDENT] and therefore is not [RESPONDENT] under section 129 of the Act;

20 Certified to be the Research Copy released for publication.

[NAME] Member (b) is not a [NAME] within the meaning of Article 1(1) of the [NAME] and, therefore, is not a [NAME] under section 130 of the Act; (c) is not a [NAME] within the meaning of the relevant elements of Articles 6 and 7 of the ICCPR and, therefore, is not a [NAME] under section 131 of the Act. [88] The appeal is dismissed. Order as to Depersonalised Research Copy [89] The Tribunal is satisfied that publication of this decision beyond the parties (and those to whom disclosure is permitted by section 151(2)(a), (b) or (c)) would tend to identify the appellant. [90] Pursuant to clause 19 of Schedule 2 of the Act, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant’s name and any particulars likely to lead to the identification of the appellant. “[NAME]” [NAME] Member