Refugee Appeal Dismissed for Lack of Evidence

OUTCOME: Dismissed

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2026] NZIPT 803258 RŌPŪ TAKE MANENE, TAKE WHAKAMARU AOTEAROA

Appellant: [redacted]

Respondent: [redacted] Officer

Before: Judge M Treadwell (Chair)

Counsel for the Appellant: [redacted]

Counsel for the Respondent: [redacted]

Date of Decision: 21 April 2026 ___________________________________________________________________

DECISION __________________________________________________________________ INTRODUCTION [1] This is an appeal against a decision of a refugee and protection officer declining to grant refugee status or protected person status to the appellant, a citizen of India. The Principal Issues on Appeal [2] The appellant claims to have a well-founded fear of being persecuted in India, or to be in danger of being subjected to another qualifying form of harm because he was targeted by [NAME_2] because of his religion. [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 (b) whether the evidence establishes that there is a real chance of the appellant being persecuted or suffering another form of serious harm

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entitling him to be recognised as a refugee or a protected person 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 refugee or protected person status. However, an oral hearing may be dispensed with if the appellant was interviewed by the [NAME_3] 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] On 25 February 2025, the [NAME_3] interviewed the appellant in respect of his claim. It then declined the claim, leading to the present appeal. [6] On 20 March 2026, the Tribunal wrote to counsel for the appellant. 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 detailed summary of the appellant’s claim and gave him the opportunity to respond by 27 March 2026: “The Tribunal has received the above appeal. I am instructed by the Tribunal to write to you as follows. Whether to offer an oral hearing Normally, the Tribunal offers refugee and protected person appellants an oral hearing. However, pursuant to section 233(3) of the Immigration Act 2009, if an appellant was interviewed by the [NAME_3], the Tribunal may determine his or her appeal without providing an oral hearing if it considers that the appeal is, prima facie, manifestly unfounded. The appellant was interviewed by the [NAME_3] on 25 February 2025. In view of the following, the Tribunal considers that the appeal is, prima facie, manifestly unfounded. If so, the appeal could be determined without providing the appellant an oral hearing. In reaching its preliminary view, the Tribunal takes into account:

1. It is the appellant’s responsibility to establish his claim and to ensure that all information, evidence and submissions which he wishes to have considered are provided to the Tribunal before it makes its decision – see section 226(1) of the Immigration Act 2009. The appellant had the same responsibility in respect of his claim before the [NAME_3], including the obligation to put forward all information, evidence, and submissions that he wished to have considered in support of the claim or would wish to have considered in support of any other potential claim – see section 135 of the Act.

2. A summary of the relevant parts of the claim, as recorded in the decision of the [NAME_3] and its file, is:

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(a) The appellant was born in [Z village], Uttarakhand, India in 1998, into a [NAME_4]. He has two married sisters. He is not married and does not have any dependents. (b) In 2018, the appellant and his family opened a fruit and vegetable shop in [Y suburb], [X town], Himachal Pradesh. (c) In March 2020 [The appellant gave the date as 2019, not 2020, but in view of the fact that the COVID-19 outbreak began in early 2020, it will be assumed for the purposes of this letter that he meant 2020], a Muslim group, [NAME_5], held a gathering in New Delhi with thousands in attendance. As this was during the early stages of Covid-19 entering India, [NAME_5] were accused of causing the spread of the virus. The [NAME_2] used this gathering to harass and taunt [NAME_5] and other Muslims. The [NAME_2] insulted Muslims by telling them to go back to Pakistan. (d) In about April-May 2020 [the same applied here], four or five members of [NAME_2] arrived on motorcycles at the market where the appellant's shop was located in [W] Colony. The appellant ignored them but they returned several days later. The appellant confronted them over the slurs they had called him, and an argument followed. The argument was broken up by neighbours but the men returned every Saturday thereafter. They revved their motorcycles and used slurs as they passed by the appellant's shop. The market had eight shops in total, with only one another being owned by a Muslim - a hair salon vendor. These weekly disruptive visits by [NAME_2] continued for the next three years. (e) On 30 April 2022, the owner of the hair salon asked the appellant to drop him off at his brother's home. Around 10.45pm, while the appellant was driving, three men stopped him at an intersection, [V intersection]' . As the appellant got out of his car to confront them he was hit on his head by three or four men who appeared behind him. The salon owner fled, and the six or seven men proceeded to kick the appellant after he had fallen to the ground. The assault was stopped when people from the surrounding shops intervened. The appellant was taken to hospital where he stayed for two days. He did not require surgery but had an injury to his tendons and pain in his ribs from being kicked. He spoke to the police at the hospital and gave an account of the attack. He was told by those who intervened that one of the attackers had a rock in his hand and he feared the attackers would have killed him had no one intervened. (f) Several days later, the attackers were caught by police and released on bail. The appellant's father was advised by two village council heads to withdraw the case but he refused to do so as his son was hurt. (g) The appellant continued to run his shop after he recovered from his injuries. However, he was threatened by the [NAME_2] to withdraw the police complaint. (h) In August or September 2022, the appellant attended a court hearing regarding the complaint he had filed. None of his attackers attended. The appellant was threatened again by the [NAME_2] to withdraw the case. This prompted the

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appellant's parents to send him overseas as they feared for his safety. On 29 September 2022, the appellant travelled to Thailand, Vietnam and Malaysia. He intended to be away from the situation back in India for a few days and hoped things would have settled down upon his return. On 5 October 2022, he returned to India. (i) Throughout October 2022, the appellant continued to operate his shop without incident; however, the [NAME_2] returned. They behaved as before, revving their motorbikes and calling the appellant names as they passed his shop. On one instance, around late October or November 2022, they again threatened him to withdraw the court case. (j) In March 2023, ahead of the second court hearing scheduled for May or June 2023, the appellant was threatened by the [NAME_2] for the final time. They insisted that he withdraw the court case as it hindered them in finding work or travelling overseas. (k) On 26 April 2023, the appellant lodged an application for a New Zealand visitor visa. The application was approved on 28 April 2023. (l) On 29 May 2023, the appellant arrived in New Zealand. (m) Sometime after arriving in New Zealand, the appellant posted some photos on lnstagram which prompted the people who had threatened and attacked him to visit his home in Uttarakhand. They left without speaking to his parents or entering the property. The appellant learned of this visit and decided to lodge his refugee and protection claim after he realised the men after him were not backing off. (n) On 1 October 2023, the [NAME_3] received the appellant's Confirmation of Claim to Refugee and Protection Status form. His claim was declined on 23 October 2025. No sufficient risk of qualifying harm The appellant’s relevant past experiences can be summarised thus: (a) From early 2020, the appellant has been subjected to weekly harassment by [NAME_2] who have revved their motorbikes when passing his shop and called him names. (b) In April 2022, the appellant was stopped at an intersection (a chowk). As he got out of his car he was hit on his head by men who appeared behind him. The men then kicked him while he was on the ground. He was taken to hospital where he stayed for two days. He had an injury to his tendons and pain in his ribs. (c) The police acted on the appellant’s complaint and brought criminal charges against the men involved. Those proceedings were still going through the courts when the appellant left India. (d) On several occasions, the men tried to get the appellant to withdraw the court proceedings, by threatening to harm or kill him. They did not, however, harm him in any way.

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Not all harm entitles an appellant to protection under the Act. For refugee status, an appellant must establish a predicament amounting to ‘being persecuted’ in India, which is serious harm arising from breaches of human rights; see DS (Iran) [2016] NZIPT 800788, at [114]–[130] and [177]–[183]. Otherwise, the harm must be of the limited kind falling within the scope of sections 130 and 131 of the Act, namely that he or she is in danger of: (a) being tortured; (b) cruel, inhuman or degrading treatment; or (c) arbitrary deprivation of life. Additionally, the thresholds of both “a real chance of being persecuted” and being “in danger of” one of the other forms of harm are higher than mere speculation or a remote or random possibility – see Refugee Appeal No 76044 (11 September 2008), at [57], HX (China) [2023] NZIPT 802189, at [55]–[60], and [NAME_7]) [2011] NZIPT 800050–053, at [81]–[83]. The evidence here does not appear to establish a risk of any such harm any higher than mere speculation or a remote or random possibility for the following reasons: (a) While the appellant was struck on the head and beaten by the men on one occasion in April 2022, the harm he suffered was not serious in the context that it requires the protection of another state. It is accepted that the assault was outrageous and a criminal act, but the appellant suffered no greater harm than bruised or strained tendons and bruising to his ribs. He was discharged from hospital within two days. (b) The incident in question occurred in April 2022, four years ago. No further physical harm of any kind has happened to the appellant. (c) The police acted responsibly and promptly in locating the assailants and prosecuting them. Until the appellant left India, the matter was progressing through the courts. In spite of threats to withdraw the complaint, the men have not harmed the appellant in any way. Given these factors, it appears that the chance of the appellant suffering serious harm arising from breaches of human rights in the future is no more than speculative and remote. It is the appellant’s responsibility to establish his claim. He appears not to have established that he meets the requirements of Article 1A(2) of the [NAME_8]. Nor does he appear to have demonstrated that there are substantial grounds for believing that he is at risk of any of the proscribed forms of harm in sections 130 and 131 of the Act. He appears not to be not entitled to the surrogate protection of another state. Internal protection alternative There is a further reason why the claim appears to be manifestly unfounded. In respect of the refugee claim under section 129 of the Act, and as a protected person under sections 130 and 131 of the Act, the Tribunal is required to assesses whether the risk of serious harm (assuming a risk to exist, which does not appear to have been established, for the reasons given above) in the appellant’s usual place of domicile can be reduced to below the real chance level by their relocating elsewhere in the country or origin and securing meaningful domestic protection there for that harm; see sections 130 (2) and 131(2) and the discussion of this principle in Refugee Appeal No 76044 (11 September 2008), BI (Afghanistan) [2018] NZIPT 801220, at [50]–[51], and AC (Russia) [2012] NZIPT 800151.

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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 Refugee Appeal No 71684/99 (29 October 1999), at [47] onwards. Where an ‘internal protection alternative’ exists, the claim must be declined as the claimant cannot have a well-founded fear of being persecuted or being subjected to another qualifying harm in the country of origin and the need for surrogate international protection simply does not arise. It is the appellant’s responsibility to establish that there is no viable internal protection alternative; see Refugee and Protection Officer v BA (Nigeria) [2022] NZHC 706, at [21]. 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. (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 [NAME_8] itself. Even if the appellant were at risk of serious harm in his town (which is not accepted, for the reasons explained above) it appears that he could access, and reside safely in any other large city in Uttarakhand, such as Dehradun, Haridwar, Roorkee or Haldwani (all of which have populations exceeding 200,000 people), or further afield in Delhi (population estimated at 35 million). He has skills as shopkeeper to assist him in getting established. The evidence does not point to any risk in any of those locations of [NAME_2] harming him or of other forms of harm, or persecution for other reasons. The basic human rights recognised by the [NAME_8] are available there. Those alternative places of relocation appear to meet the criteria for an internal protection alternative. If correct, the appellant is not outside India, his country of nationality, owing to there being a real chance of serious harm arising from breaches of human rights occurring in the future. The risk appears to fall short of the thresholds of “a real chance” and being “in danger of” by a significant margin. The appellant does not appear to require the surrogate protection of another state. Opportunity to Respond It appears that appellant has neither a well-founded fear of being persecuted for a Convention reason nor grounds for being recognised as a protected person under s130 or s131 of the Immigration Act 2009. The claim appears to be, prima facie, manifestly unfounded. The Tribunal must now consider whether to offer the appellant an oral hearing. You are invited to forward to the Tribunal, by 5:00 pm, on 27 March 2026, any submissions responding to the matters raised above and any other submissions or evidence your client wishes to tender to support the appeal. The Tribunal will then determine whether or not the appeal is, prima facie, manifestly unfounded and, if so, whether or not to offer your client an oral hearing. If it decides not to offer an oral hearing, it will determine the appeal on the information available to it, without further notice.”

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[7] On 20 March 2026, counsel filed written submissions in reply. Whether the appeal is manifestly unfounded [8] The Tribunal required two straightforward issues to be addressed: (a) Whether the claim is manifestly unfounded in the sense that, even if taking all that is claimed at face value (including anything new advanced by the appellant), it is incapable of success. To assist counsel, the Tribunal’s letter explained why it considered that the claim is, prima facie, manifestly unfounded. (b) Should the Tribunal determine that it is manifestly unfounded and so determine not to offer an oral hearing, what further evidence or submissions are to be provided? [9] In his submissions, counsel argues: (a) The claim is not manifestly unfounded. The appellant is facing “cumulative risk”. While the physical assault by the [NAME_2] may not have constituted serious harm in isolation, there is a significant risk of more serious harm. [NAME_2] threatened and attacked him repeatedly; hence, he faces an escalating risk of harm. The repeated targeting by these members increases the risk of serious harm in the future. (b) While the violence occurred over four years ago, given the prevalence of violence in India it is not speculative that he would continue to be targeted should he return. Violence against perceived political opponents of the BJP and the [NAME_2] is widespread. Country information indicates a high level of political violence, corruption, religious intolerance and arbitrary killings in the country. The appellant, a Muslim, could be victimised given the prevalence of violence. In addition, the threats against him have persisted even after he arrived in New Zealand, indicating the risk remains active. (c) It would not matter whether the appellant relocated or stayed in the same place. Relocation would not mitigate the risk of harm that he faces, given that:

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(i) [NAME_9] nationwide have a wide network of supporters and there is widespread police corruption; and (ii) his family members could be pressured into revealing his whereabouts. (d) Even though the [NAME_2] were prosecuted, they could still receive a community-based sentence, which would give them the opportunity to target the appellant again. It is unlikely they would be imprisoned for long. (e) The United States Department of State 2024 Country Reports on Human Rights Practices: India recorded significant human rights issues in India, including arbitrary killings. The police are often viewed as ineffective or corrupt, and the possibility of harm to the appellant is not remote. (f) The increase in corruption within the [NAME_10] and the targeting of groups of people were previously factors in the recognition of refugee status in another case, RE (India) [2024] NZIPT 802321. (g) The appellant’s situation is analogous to UB (India) [2025] NZIPT 802385, which involved a Muslim man targeted by [NAME_11] “goons”. In that case, the Tribunal found that there was no viable internal protection alternative because the BJP’s influence is nationwide. (h) As with the [NAME_8], the appellant also meets the tests under sections 130 and 131 of the Act. (i) Finally, an oral hearing is essential to resolve the adverse credibility findings regarding the appellant’s timeline and travel stamps. Under the “benefit of doubt” principle, an in-person appeal is the only fair mechanism to determine if inconsistencies in his recollection arise from a genuine memory lapse under stress rather than fabrication. Conclusion on whether manifestly unfounded [10] It is necessary to address counsel’s submissions.

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“Cumulative risk” (a) Counsel submits that the appellant faces “cumulative risk”. It is not explained what this means or why it is relevant. In fact, on his own account, the appellant has experienced intimidation and one physical assault from a group of [NAME_12] “goons”. In terms of the ordinary English meaning of “cumulative” (increasing or growing through accumulation), there is nothing cumulative about the risk to him. (b) The acknowledgement that the physical assault by the [NAME_2] did not constitute serious harm is correctly made. (c) While counsel asserts that [NAME_2] threatened and attacked the appellant repeatedly, that is not the case. He was attacked once. Violence against perceived political opponents of the BJP and the [NAME_2] is widespread (d) Since the appellant reported the assault on him to the police, the culprits have been caught and charged by the police. While the men later threatened the appellant to drop the matter, in fact no further harm came to him in the year that he remained in India. (e) The assertion that the [NAME_2] could receive a community-based sentence, which would give them the opportunity to target the appellant again ignores the reality that the men were clearly released on bail pending trial, and did not harm the appellant in spite of that opportunity. Internal protection alternative (f) Counsel submits that relocation would not mitigate the risk of harm that the appellant faces, given that: (i) [NAME_9] nationwide have a wide network of supporters and there is widespread police corruption; and

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(ii) his family members could be pressured into revealing his whereabouts. (g) As to the first submission, it is no more than that. No evidence is provided to establish that such networks exist, or that they would be accessible by low-level village “goons”, or that such networks (if they exist) would have any bearing on their ability to locate the appellant in a population of 1.4 billion people. (h) As to the second submission, it is no more than speculation. RE (India) [2024] NZIPT 802321 (i) RE (India) has little relevance to the present case. The appellant in that case was a [NAME_13] who had published inflammatory material online. His predicament bears no comparison to that of the appellant here. Counsel are encouraged not to cite cases of little relevance. UB (India) [2025] NZIPT 802385 (j) UB (India) is said to be a case on all fours with the present appeal because it “involved a Muslim man targeted by [NAME_11] goons” and that the Tribunal found that there was no viable internal protection alternative because the BJP’s influence is nationwide. (k) In reality, the Muslim appellant in UB (India) came from a different state. He was a well-known online commentator on political and religious matters, who organised and spoke at a rally about the difficulties that [NAME_12] were causing. He and his friends were attacked by armed men who seriously injured some of the appellant’s friends with swords. A particular individual in the [NAME_18] managed to locate the appellant when he relocated to Delhi, likely getting that knowledge through a family member or community member who knew. (l) For obvious reasons, the circumstances in UB (India) bear little resemblance to the current claim. The appellant here has no political or religious profile – he has simply got off-side with a small group of local Hindu “goons” who, for the most part, have delighted in harassing him by riding past his shop and abusing him verbally.

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No-one has been seriously harmed, as occurred in UB (India). Further, because the claimant in that case had the misfortune to have a third party disclose his whereabouts when he moved to Delhi, it is no more than speculative that the same thing would happen here. An oral hearing is essential to resolve adverse credibility findings (m) This submission by counsel is, as the Tribunal has stated in a number of cases in which counsel has appeared, illogical and potentially harmful for his client’s interests. The ‘manifestly unfounded’ assessment must take, as its foundation, the acceptance of the claim. Full weight must be given to it. For counsel to urge the Tribunal to test his client’s credibility is demonstrably not in his client’s interests. (n) As to the reference to an issue concerning the timeline and travel stamps, no such issue is apparent on the face of the claim. [11] In sum, counsel’s submissions raise nothing new by way of evidence. They do not persuade the Tribunal that, even taking the claim at face value, it establishes either that the appellant has a well-founded fear of being persecuted in his home area, or that he does not have an internal protection alternative. The Tribunal finds, for the reasons explained in its letter, that, even accepting the claim as asserted, the appellant does not meet the requirements for recognition as a refugee or protected person. The appeal is manifestly unfounded. [12] For that reason, the Tribunal determines not to offer the appellant an oral hearing. [13] It is now necessary to turn to the facts of the appellant’s case, bearing in mind that credibility is accepted. THE APPELLANT’S CASE [14] Given that the same claim is relied upon in respect of all limbs of the appeals, it is appropriate to record it first. What follows is a summary of the details as recorded in the appellant’s Confirmation of Claim form, the decision of the [NAME_3] (which incorporated the changes or corrections which the

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appellant made to the interview report following his interview) and other material contained in the appeal file. [15] The appellant was born in Z village, Uttarakhand, India in 1998, into a [NAME_4]. He has two married sisters. He is not married and does not have any dependents. [16] In 2018, the appellant and his family opened a fruit and vegetable shop in Y suburb, X town, Himachal Pradesh. [17] In March 2020 (the appellant gave the date as 2019, not 2020, but in view of the fact that the COVID-19 outbreak began in early 2020, it will be assumed that he meant 2020), a Muslim group, [NAME_5], held a gathering in New Delhi with thousands in attendance. As this was during the early stages of COVID-19 entering India, [NAME_5] were accused of causing the spread of the virus. The [NAME_2] used this gathering to harass and taunt [NAME_5] and other Muslims. The [NAME_2] insulted Muslims by telling them to go back to Pakistan. [18] In about April-May 2020 (the same applied here), four or five members of [NAME_2] arrived on motorcycles at the market where the appellant's shop was located in W Colony. The appellant ignored them but they returned several days later. The appellant confronted them over the slurs they had called him, and an argument followed. The argument was broken up by neighbours but the men returned every Saturday thereafter. They revved their motorcycles and used slurs as they passed by the appellant's shop. The market had eight shops in total, with only one other being owned by a Muslim – a hair salon vendor. These weekly disruptive visits by [NAME_2] continued for the next three years. [19] On 30 April 2022, the owner of the hair salon asked the appellant to drop him off at his brother's home. Around 10.45pm, while the appellant was driving, three men stopped him at an intersection, 'V intersection'. As the appellant got out of his car to confront them he was hit on his head by three or four men who appeared behind him. The salon owner fled, and the six or seven men proceeded to kick the appellant after he had fallen to the ground. The assault was stopped when people from the surrounding shops intervened. The appellant was taken to hospital where he stayed for two days. He did not require surgery but had an injury to his tendons and pain in his ribs from being kicked. He spoke to the police at the hospital and gave an account of the attack. He was told by those who

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intervened that one of the attackers had a rock in his hand and he feared the attackers would have killed him had no one intervened. [20] Several days later, the attackers were caught by police and released on bail. The appellant's father was advised by two village council heads to withdraw the case but he refused to do so as his son was hurt. [21] The appellant continued to run his shop after he recovered from his injuries. However, he was threatened by the [NAME_2] to withdraw the police complaint. [22] In August or September 2022, the appellant attended a court hearing regarding the complaint he had filed. None of his attackers attended. The appellant was threatened again by the [NAME_2] to withdraw the case. This prompted the appellant's parents to send him overseas as they feared for his safety. [23] On 29 September 2022, the appellant travelled to Thailand, Vietnam and Malaysia. He intended to be away from the situation back in India for a few days and hoped things would have settled down upon his return. On 5 October 2022, he returned to India. [24] Throughout October 2022, the appellant continued to operate his shop without incident; however, the [NAME_2] returned. They behaved as before, revving their motorbikes and calling the appellant names as they passed his shop. On one instance, around late October or November 2022, they again threatened him to withdraw the court case. [25] In March 2023, ahead of the second court hearing scheduled for May or June 2023, the appellant was threatened by the [NAME_2] for the final time. They insisted that he withdraw the court case as it hindered them in finding work or travelling overseas. [26] On 26 April 2023, the appellant lodged an application for a New Zealand visitor visa. The application was approved on 28 April 2023. [27] On 29 May 2023, the appellant arrived in New Zealand. [28] Sometime after arriving in New Zealand, the appellant posted some photographs on lnstagram which prompted the people who had threatened and attacked him to visit his home in Uttarakhand. They left without speaking to his

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parents or entering the property. The appellant learned of this visit and decided to lodge his refugee and protection claim after he realised the men after him were not backing off. [29] On 1 October 2023, the [NAME_3] received the appellant's Confirmation of Claim to Refugee and Protection Status form. His claim was declined on 23 October 2025. ASSESSMENT [30] 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) a refugee under the 1951 Convention Relating to the Status of Refugees (“the [NAME_8]” or “the Convention”) (section 129); and (b) a protected person under the 1984 [NAME_14] (section 130); and (c) a protected person under the 1966 [NAME_16] (“the ICCPR”) (section 131). Assessment of the Appellant’s Evidence [31] 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 [NAME_8] [32] Section 129(1) of the Act provides that: “A person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the [NAME_8].” [33] Article 1A(2) of the [NAME_8] provides that a refugee 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 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

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being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.” [34] In determining what is meant by “well-founded” in Article 1A(2) of the Convention, the Tribunal adopts the approach in [NAME_15] 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 Refugee Appeal No 76044 (11 September 2008) at [57]; and HX (China) [2023] NZIPT 802189 at [55]–[60]. [35] “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]. [36] The principal issues are, as explained in Refugee Appeal No 70074 (17 September 1996), affirmed by the Tribunal in DS (Iran) [2016] NZIPT 800788 at [213]: (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 the Appellant Being Persecuted in India? [37] It is necessary to record the relevant country information. Country information [38] India is a vast country of many ethnicities, cultures, religions and languages. Country information indicates that, while it is a democratic state which generally respects the rule of law, human rights violations occur. The United States Department of State 2024 Country Reports on Human Rights Practices: India (12 August 2025) records numerous human rights concerns in India in its executive summary, including credible reports of arbitrary or unlawful killings; disappearances; torture or cruel, inhuman, or degrading treatment or punishment; arbitrary arrest or detention; transnational repression against individuals in another country; serious abuses in a conflict; unlawful recruitment or

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use of children in armed conflicts by Maoist non-state groups; serious restrictions on freedom of expression and media freedom, including violence or threats of violence against journalists, unjustified arrests or prosecutions of journalists, and censorship; and instances of coerced abortion or forced sterilisation. Whether a well-founded fear of being persecuted [39] To establish a real chance of being persecuted, it is the responsibility of the claimant to point to evidence indicating a real chance of serious harm arising from breaches of internationally recognised human rights. [40] The threshold of “a real chance of being persecuted” (and also of being “in danger of” one of the other forms of harm) is higher than mere speculation or a remote or random possibility; see Refugee Appeal No 76044 (11 September 2008), at [57]; HX (China) [2023] NZIPT 802189 at [55]–[60]; and [NAME_7]) [2011] NZIPT 800050–053, at [81]–[83]. [41] Further, not all harm entitles an appellant to protection under the Act. For refugee status, an appellant must establish a predicament amounting to ‘being persecuted’ in India, which is serious harm arising from breaches of human rights; see DS (Iran) [2016] NZIPT 800788, at [114]–[130] and [177]–[183]. Otherwise, the harm must be of the limited kind falling within the scope of sections 130 and 131 of the Act, namely that he or she is in danger of: (a) being tortured; (b) cruel, inhuman or degrading treatment; or (c) arbitrary deprivation of life. [42] The evidence here 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) While the regular harassment and bullying of the appellant by riding past his shop, revving loudly and calling out abuse, must have been stressful and upsetting for the appellant, it was not serious harm in the context that it requires the protection of another country. (b) While the appellant was struck on the head and beaten by the men on one occasion in April 2022, the harm he suffered was not serious in the context that it requires the protection of another state. It is

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accepted that the assault was outrageous and a criminal act, but the appellant suffered no greater harm than bruised or strained tendons and bruising to his ribs. He was discharged from hospital within two days. (c) The incident in question occurred in April 2022, four years ago. No further physical harm of any kind has happened to the appellant. (d) Whatever the generalised picture painted by country information at the national level, in the circumstances of this appellant, the police acted in accordance with their obligation to provide the appellant with protection by promptly locating the assailants and prosecuting them. Until the appellant left India, the matter was progressing through the courts. In spite of threats to withdraw the complaint, the men did not further harm the appellant in any way, despite his staying in India for a further year. Nor has the appellant made any further complaint to the police about these threats before coming to New Zealand. There is no reason to conclude that they would not act in relation to these threats as they did in relation to the incident in April 2022. [43] Given these factors, the chance of the appellant suffering serious harm arising from breaches of human rights in the future, demonstrative of a failure of state protection, is no more than speculative and remote. [44] It is the appellant’s responsibility to establish his claim. He has not established that he meets the requirements of Article 1A(2) of the [NAME_8] for this reason alone. Internal protection alternative [45] There is a further reason why the claim is manifestly unfounded. [46] In respect of the refugee claim under section 129 of the Act, (and also as a protected person under sections 130 and 131 of the Act), the Tribunal is required to assesses whether the risk of serious harm (assuming a risk to exist, which does not appear to have been established, for the reasons given above) in the appellant’s usual place of domicile can be reduced to below the real chance level by their relocating elsewhere in the country or origin and securing meaningful domestic protection there for that harm; see sections 130(2) and 131(2) and the discussion of this principle in Refugee Appeal No 76044 (11 September 2008),

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BI (Afghanistan) [2018] NZIPT 801220, at [50]–[51], and AC (Russia) [2012] NZIPT 800151. [47] 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 Refugee Appeal No 71684/99 (29 October 1999), at [47] onwards. [48] Where an ‘internal protection alternative’ exists, the claim must be declined as the claimant cannot have a well-founded fear of being persecuted or being subjected to another qualifying harm in the country of origin and the need for surrogate international protection simply does not arise. It is the appellant’s responsibility to establish that there is no viable internal protection alternative; see Refugee and Protection Officer v BA (Nigeria) [2022] NZHC 706, at [21]. [49] 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. (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 [NAME_8] itself. [50] Even if the appellant were at risk of serious harm in his town (which is not accepted, for the reasons explained above) he could access, and reside safely in any other large city in Uttarakhand, such as Dehradun, Haridwar, Roorkee or Haldwani (all of which have populations exceeding 200,000 people), or further afield in Delhi (population estimated at 35 million). He has skills as a shopkeeper to assist him in getting established. The evidence does not point to any risk in any of those locations of [NAME_2] harming him or of other forms of harm,

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or persecution for other reasons. The basic human rights recognised by the [NAME_8] are available there. [51] Those alternative places of relocation meet the criteria for an internal protection alternative. For this reason, the appellant is not outside India, his country of nationality, owing to a real chance of serious harm arising from breaches of human rights occurring in the future. The risk falls short of the threshold of “a real chance” (and, in the protected person context, being “in danger of”) by a significant margin. The appellant does not require the surrogate protection of another state. Is there a Convention Reason for the Persecution? [52] In light of the Tribunal’s finding that the appellant does not have a well-founded fear of being persecuted in India, it is not necessary to address this issue. Conclusion on Claim to Refugee Status [53] For the above reasons, the appellant is not entitled to be recognised as a refugee under the [NAME_8] and section 129 of the Act. The [NAME_14] [54] Section 130(1) of the Act provides that: “A person must be recognised as a protected person in New Zealand under the [NAME_14] 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.” [55] Section 130(5) of the Act provides that torture has the same meaning as in the [NAME_14], 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.”

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[56] The appellant relies upon the same evidence for this part of his appeal as he does for his claim to refugee status. The same findings of credibility and fact apply. [57] As the Tribunal has explained consistently since the creation of the protected person categories of its jurisdiction, the risk required to be established (being ‘in danger of’) is, like the real chance test in the refugee enquiry, a low threshold, but it requires more than speculation or a mere possibility. [58] There are no substantial grounds for believing that the appellant is in danger of being subjected, in India, to severe mental or physical pain or suffering for any of the prescribed purposes with any of the prescribed involvement of a public official.

Accordingly, the appellant is not recognised as protected persons in New Zealand under the [NAME_14]. Conclusion on Claim under [NAME_14] [59] For the above reasons, the appellant is not a protected person under section 130 of the Act. The ICCPR [60] Section 131 of the Act provides that: “(1) A person must be recognised as a protected person in New Zealand under the [NAME_16] 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.” Assessment of the Claim under the ICCPR [61] Again, the appellant relies upon the same evidence for this part of his appeal as for his claim to refugee status. The same findings of credibility and fact apply. [62] The breaches of human rights inherent in the arbitrary deprivation of life or in cruel, inhuman or degrading treatment are not different to breaches of those same rights when considered in relation to the refugee enquiry. The Tribunal has already found that, there, the appellant does not face a real chance of any such

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breach of rights in India. Nor is it the case that the degree of harm required for cruel, inhuman or degrading treatment is any less serious than the degree of harm (that is to say, serious harm) required for the assessment of refugee status. [63] Equally, the Tribunal is satisfied here that there are no substantial grounds for believing that the appellant is in danger of being arbitrarily deprived of life or subjected to cruel treatment in India. He is not recognised as a protected person in New Zealand under the ICCPR. Conclusion on Claim under the ICCPR [64] For the above reasons, the appellant is not a protected person under section 131 of the Act.

CONCLUSION [65] For the foregoing reasons, the Tribunal finds that the appellant: [redacted] is not a refugee within the meaning of the [NAME_8] and, therefore, is not a refugee under section 129 of the Act; (b) is not a protected person within the meaning of Article 1(1) of the [NAME_14] and, therefore, is not a protected person under section 130 of the Act; (c) is not a protected person within the meaning of the relevant elements of Articles 6 and 7 of the ICCPR and, therefore, is not a protected person under section 131 of the Act. [66] The appeal is dismissed. Order as to Depersonalised Research Copy [67] 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. [68] 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

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Certified to be the Research Copy released for publication.

Judge M Treadwell Chair removal of the appellant’s name and any particulars likely to lead to the identification of the appellant. “Judge M Treadwell” Judge M Treadwell Chair