AG (Mongolia) [2024] NZIPT 802069 (31 January 2024)

Last Updated: 22 March 2024

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND	[2024] NZIPT 802069
RŌPŪ TAKE MANENE, TAKE WHAKAMARU AOTEAROA
Appellant:	AG (Mongolia)
Before:	Judge M Treadwell (Chair)
	A N Molloy (Member)
Counsel for the Appellant:	S Lamain
Counsel for the Respondent:	No Appearance
Dates of Hearing:	3, 4, 5 and 6 July 2023
Date of Decision:	31 January 2024
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 Mongolia.

[2] Initially, this appeal was filed at the same time as an appeal by the appellant’s wife, AA. Before the hearing of the appeals, however, AA returned to Mongolia where the couple’s child was being cared for by relatives. On her departure from New Zealand, her appeal was deemed withdrawn by operation of section 142 of the Immigration Act 2009 (“the Act”). The appellant’s appeal has therefore proceeded to a hearing on its own.

The Principal Issue on Appeal

[3] The appellant claims to have a well-founded fear of being persecuted or to be in danger of being subjected to another qualifying form of harm because he has been accused of being a drug dealer by the children of wealthy and influential

people, in order to escape their own involvement in such activity. The appellant claims that the police and the courts are corrupt and will be complicit in attributing the offending to him, leading to his mistreatment in police custody and his unjust imprisonment in harsh conditions.

[4] The principal issues to be determined are whether the appellant’s account is credible and whether the risk of the appellant suffering such harm reaches the required threshold.

[5] For the reasons which follow, the Tribunal finds that the appellant is in danger of being subjected to torture, as that term is defined in the 1984 Convention Against Torture, in the form of serious mistreatment at the hands of the Mongolian police, in order to force a confession from him. While he is not recognised as a refugee because the harm is not for any of the reasons required by the Refugee Convention, he is recognised as a protected person under section 130 of the Act.

[6] Given that the same claim is relied upon in respect of all limbs of the appeal, it is appropriate to record it first.

THE APPELLANT’S CASE

[7] The account which follows is a summary of that given by the appellant at the appeal hearing. It is assessed later.

Evidence of the Appellant

[8] The appellant was born in Z city, Mongolia in the early 1990s, as the second child in the family. His parents separated when he was young and he is estranged from his father, who has been in and out of prison, though they chat sometimes by Facebook. The appellant’s mother died in the 2000s. He has one sibling, who continues to reside in Mongolia.
[9] In 2011, the appellant graduated with a degree. He then began doing freelance work in a particular field. He met his wife in about 2014 and they began a relationship.

[10] In 2015, the appellant began working at ABC agency. The director of the agency was an older woman who became a mother figure for him.

[11] During 2015, the appellant met BB, at a computer game centre. They became friends.

[12] The appellant and his wife married in early 2016. They lived in a rented apartment and AA found casual employment at ABC agency as a secretary.

[13] In mid-2018, the appellant and AA had a son named CC.

[14] In late 2018, the appellant met a friend of BB, DD, who would sometimes accompany BB to the appellant’s studio. The appellant noted that DD was wealthy and had an expensive car. The appellant and DD met a few times and became friends on Facebook.

[15] In early November 2018, in the early hours of the morning, the appellant received a call from DD on Facebook Messenger. DD asked him for help, as he did not know anyone else in the area. He explained that he was with a friend who owed him money. However, DD had lost his wallet and could not withdraw money himself. His friend did not have a bank card either. DD asked the appellant if they could meet outside his apartment.

[16] The appellant agreed and met DD, who was alone. DD asked the appellant if his friend could transfer the money that he owed to DD to the appellant’s bank account and use the appellant’s bank card to then withdraw it.

[17] The appellant refused to go with DD to an ATM, or to lend him his bank card. DD then suggested that his friend could transfer the funds to the appellant's account, which the appellant could withdraw and give to DD later that day. The appellant felt obliged to help DD and agreed to this.

[18] The appellant went to work as usual and, later that morning, he saw that MNT800,000 (approximately NZ$380) had been transferred to his bank account. That afternoon, a further MNT400,000 (approximately NZ$190) was also transferred to the appellant's account.

[19] The appellant returned home at about 6pm. He called DD who told him to meet him at a particular bus stop.

[20] The appellant had some MNT3 million in cash, as he was planning to pay for an appointment at a health retreat centre for his wife and their son. He took a taxi to the bus stop, where he gave DD MNT1.2 million. He then took a further taxi to the health retreat centre, where he paid for the appointments.

[21] Some weeks later, while the appellant was at work, police officers from the Mongolian Drug Control Agency came in. They told the appellant that he had to go to the police station and handcuffed him. They then put the appellant in a vehicle and drove him to the central police station.

[22] After some three or four hours, the appellant was spoken to by Inspector EE, who removed the handcuffs and apologised, explaining that there had been a misunderstanding, and that the appellant was not under arrest. He asked the appellant to answer questions about DD and a man named FF. The Inspector claimed that DD and FF had been arrested, with others, for dealing in and consuming drugs. They told the police that they had bought the drugs from the appellant.

[23] The appellant was shocked and denied this. Inspector EE asked him how he knew DD and FF, when he had seen them last, and why they had transferred MNT1.2 million into his bank account. The appellant told the Inspector what had occurred in early November.

[24] Inspector EE gave the appellant the business card of a lawyer, GG. The appellant was then released, on a warning that he would be called in for further questioning.

[25] The appellant went to GG’s office. He hired GG as his lawyer and signed an authority for GG to act on his behalf. At home, the appellant told his wife what had happened. They were not greatly concerned at the time, because they knew that the appellant was innocent.

[26] A few days later, two police officers arrived at the appellant’s apartment, with police dogs, and searched the premises. The appellant’s wife and son were at home. The police officers did not produce a search warrant, but the appellant’s wife was afraid and let them search the apartment. They found nothing.

[27] Over the next month, the appellant received telephone calls from Inspector EE about four times a week, calling him into the police station to answer questions. The appellant called GG each time but GG always claimed to be busy in court, and never went with him to the police station.

[28] At the police station, the appellant was never questioned about the drug dealing allegations. Rather, police officers would get him to run errands, bringing them water, buying them lunch and cigarettes, and even asking him to download a computer game. Once, he helped them to move to a new building, carrying desks

and chairs. He believed that they simply wanted to waste his time. Even so, he continued to go to the police station and do as he was told, to avoid further trouble.

[29] While the appellant was being called in for questioning, he encountered DD twice. Meeting DD outside Inspector EE’s office, he asked DD why he had dragged the appellant into the matter by a false statement. DD apologised but refused to tell the police the truth. He told the appellant that he was afraid to admit that he was the culprit. He had given the police the appellant's name because they had used his bank account. DD told the appellant not to worry and that he would ask his lawyer to help the appellant resolve things.

[30] Soon after this encounter, the appellant tried to contact DD by telephone and Messenger. However, he could not do so and assumed that DD had blocked his number. The appellant then contacted BB and asked him about what he knew about DD and FF, as well as their families. BB told the appellant that DD’s and FF’s families were wealthy and powerful. He particularly mentioned FF’s father, who was politically well-connected and had a good relationship with many “powerful decisionmakers”.

[31] In late December 2018, the appellant saw DD a second time at the police station. He told DD that he was tired of being summoned. DD told him that he would not confess to the police, as he did not want to be in trouble. However, he told the appellant that his family and FF’s family intended to bribe Inspector EE to drop the case.

[32] Soon after this, while the appellant was at the police station, he saw DD and his mother enter Inspector EE’s office. He heard DD’s mother yell at the Inspector and the senior police officers present, saying “What are you doing to my child? You can't treat my son and me like this”. This confirmed the appellant’s belief that DD’s family was indeed influential and powerful.

[33] In early January 2019, the investigation was taken from Inspector EE and given to a new investigator, Inspector HH. The appellant suspected that Inspector EE had not been amenable to bribery and so DD’s family and FF’s family had had him replaced.

[34] Some days later, as the appellant left the police station, he was approached by a man who introduced himself as JJ, FF’s father. JJ was initially polite to the appellant and asked him how he was. He then urged him to plead guilty to the crime, offering him MNT100 million to do so. The appellant refused. On hearing

this, JJ became angry and threatened the appellant, saying “You don't know who you’re talking to. I want you to think carefully. This is a very good opportunity for you”. JJ also told him to think of his wife and baby, and to decide wisely.

[35] On a particular day in January 2019, the appellant was again called into the police station. Again, he called his lawyer, GG, to inform him of this. GG told him that he was sick and could not attend.

[36] When the appellant arrived at the police station, he saw that DD and FF were there, as well as others who were accused of the drug dealing, KK, LL and MM. The appellant also saw that their lawyers were all present. Inspector HH announced that the appellant, DD, FF, KK, LL and MM were under arrest for dealing in the drug ‘ice’. Warrants of arrest for all of the accused were produced, with the accused to be detained for 72 hours, after which a hearing would determine whether the detention would be extended.

[37] The accused were handcuffed and taken by police vehicle to Prison 461 in Ulaanbaatar. On the way, the appellant asked a police officer if he could use his telephone to call his wife and inform her of what happened. The officer agreed and the appellant was able to call his wife. He told her not to worry and that he hoped to be released in three days.

[38] The appellant’s wife called her cousin, NN, on the telephone. His father had had a lot of influence while he was alive, and the appellant’s wife knew that her cousin had connections through his father. She told NN what had happened. NN called an acquaintance, a police officer, and asked him for information about the appellant's arrest. The police officer told NN that the appellant had been arrested for dealing drugs, that the case was complicated, and that they would need a good lawyer.

[39] Later that day, the appellant’s wife received a telephone call from Inspector HH, who asked to meet. He told her that GG needed some documents from her. She told Inspector HH that she could not meet that day and they agreed to meet the following week. However, Inspector HH did not contact her again.

[40] The appellant’s wife called GG. He told her that she needed to attend the hearing and to bring the appellant's birth certificate, their marriage certificate and a letter from the bank as to the appellant’s financial position.

[41] On 16 January 2019, the appellant’s wife left home early in order to get the documents that GG had asked for. On the same day, GG visited the appellant in

prison and told him that the detention hearing was to take place the next day. He also told him that the only people present at the detention hearing were the lawyers and the judge.

[42] The next day, the detention hearing took place. The appellant’s wife arrived at the court and saw that the lawyers were all late. When GG arrived, she handed him the documents that he had asked for. He told her to wait outside while the hearing took place, and that it was likely to take one hour.

[43] Once the hearing was over, GG told the appellant’s wife that all of the accused would continue to be detained indefinitely. The appellant’s wife asked why his detention had been extended, and if she could visit him in prison. GG did not give clear answers but told her that the appellant was not allowed to have visitors. A man then approached and introduced himself as DD’s lawyer. The appellant’s wife then saw GG and DD’s lawyer leave together in the same vehicle, chatting and laughing. She began to suspect GG of working with DD’s and FF’s families. She decided to obtain a new lawyer for the appellant. At this time, she also decided to call her mother, and tell her what was happening.

[44] On 18 January 2019, the appellant’s wife telephoned NN and told him what occurred, and that she did not trust GG. She asked him if he knew of any good lawyers, and he promised to contact her when he found a suitable lawyer. That day, GG visited the appellant in prison and told him that the decision had been made to detain him indefinitely. GG told the appellant that he was in a rush and needed him to sign a document quickly. The appellant was not given a chance to read the document but believed that it confirmed that GG had informed him of what occurred at the hearing.

[45] The next day, NN told the appellant’s wife that he had found a lawyer for the appellant, OO, and that he had made an appointment for her to meet OO the next day.

[46] On 20 January 2019, AA met with OO and felt that OO was very trustworthy. She signed an authority for OO to act as the appellant's lawyer. OO promised that she would obtain the appellant's release as soon as possible.

[47] Two days later, OO told the appellant that she would represent him. She told him that his wife did not trust his previous lawyer, GG. The appellant told OO that, some days earlier, GG had him sign a document, and that he did not know what the document was.

[48] On 23 January 2019, OO called the appellant’s wife and told her that she suspected that GG was working with the lawyers for the other accused. She believed that GG had not represented the appellant properly at the hearing, and that the document that he had signed was actually a statement in which he confessed to the charge.

[49] That same day, OO visited the appellant and told him the same. Around this time, the other accused were released. The appellant believed that their families’ connections had secured this. He remained in prison, prohibited from having any visitors apart from his lawyer and the police, who came to question him. He noticed that all the other detainees, however, were able to have visitors. He also realised that they (but not he) were able to have an account into which their families could deposit money, so that they could buy items from the prison shop. He was also refused access to the showers and was never given a change of clothes. He believed that the prison guards treated him like this in order to pressure him to confess to the crime.

[50] In late January 2019, a guard ordered the appellant to follow him to a small room. There, the appellant saw three prisoners, with shaved heads, dressed in yellow outfits. The guard left the appellant in the room and locked the door. The prisoners then beat the appellant with their fists, hitting him on his face and back, saying “Why are you being stubborn? We’ll see how long you’ll endure”. Although they did not mention JJ by name, the appellant believes that the assault was orchestrated by JJ to pressure him to confess. During the attack, the appellant's front tooth was broken, and his face became covered in blood. After half an hour, the guard returned the appellant to his cell.

[51] In early February, as the appellant’s wife was walking near the apartment building, she was approached by two men who asked her about the appellant, claiming to be acquaintances. They asked her how he was, and how she and her son were. They then left.

[52] In mid-February 2019, OO was able to obtain the appellant's release from prison. Both the appellant and his wife were unsure how she accomplished this. The appellant’s wife believed that OO had given assurances to the court.

[53] On the appellant's return home, life initially returned to normal. He went back to work at ABC agency. In late March 2019, however, while his wife was taking their son for a walk, she was approached by the two men who had approached her in February. They talked to her about the appellant and began to

threaten her, saying, “Did [the appellant] forget? Does he know what JJ said? Tell him to give us a decision quickly. We can’t wait too long. We know how to find you, so you need to decide”. They then walked away.

[54] AA was frightened by this and returned to the apartment. She called the appellant and told him what happened. He came home. On arriving at the apartment building, however, he encountered the same men. They grabbed him by the collar and pushed him against a wall, causing him to hit his head. They threatened to do things to him if he did not plead guilty. The men then left.

[55] When the appellant arrived home, he explained to his wife that JJ had been pressuring him to plead guilty.

[56] In early April 2019, while the appellant was at work, his wife heard a knock at the door. She saw through a gap between the door and the doorframe that three men were outside, two of whom were the men who had threatened her. She did not let them in. When they realised that she was not going to open the door, the men tried to force it open. Fortunately, the door was locked with a heavy chain. They yelled through the door, “[JJ] is still waiting,” and stated that they would find the appellant and his wife wherever they went.

[57] After the men had gone, the appellant’s wife called the appellant. He returned home and his wife told him that they needed to make the right decision for their family. They called OO and told her that they had been receiving threats from JJ’s men. OO told them that it would take a long time for the case to be resolved, and that she expected there to be delays. She said that there was a serious possibility that the case would not be decided in the appellant’s favour, as the families of the other accused were powerful and influential. OO suggested that the appellant and his family should leave the country.

[58] Shortly afterwards, the appellant contacted the director of ABC agency. He told her about the situation that he and his family were in. The director told them that the agency facilitated ‘study abroad’ experiences and so she was familiar with visa processes. She offered to prepare their documents and apply for visas to New Zealand. She told him that the agency had an office in China, and that they could stay there while their visas were being processed.

[59] In May 2019, the appellant, his wife and their son travelled to China by train. They lived in an apartment rented by the agency. The appellant worked at the China office, while they waited for the agency to apply for New Zealand visas.

[60] Initially, the plan was for the family to travel to New Zealand together. On

14 May 2019, an application for New Zealand visitor visas was lodged with Immigration New Zealand. On 31 May 2019, they were issued visitor visas, valid for one month after arrival in New Zealand.

[61] At the last minute, the appellant and his wife decided that their son was too young and the situation too uncertain. They decided to leave him behind in Mongolia and the wife’s mother travelled to China, to retrieve the son. He continued to live with the wife’s parents, who moved to a different neighbourhood in Ulaanbaatar, until the wife returned to Mongolia.

[62] In late June 2019, the appellant and his wife departed China and flew to New Zealand.

[63] On 17 September 2019, the appellant partially completed a Confirmation of Claim to Refugee and Protection Status form at the Refugee Status Unit (“RSU”). However, he believed that it had not been fully completed, and so thought that it had not been submitted. On 6 November 2019, he and his wife lodged refugee and protection claims with the RSU. The RSU received the appellant’s second Confirmation of Claim form and his wife’s first Confirmation of Claim form.

[64] On 28 and 30 September 2020, the appellant was interviewed at the RSU. His wife was interviewed on 1 October 2020. There was then significant delay, primarily caused by the COVID-19 pandemic. Their claims were declined on 7 June 2022, leading to the present appeal by the appellant (his wife having returned to Mongolia before the appeal hearing in order to care for their child).

Material and Submissions Received

[65] Counsel has filed a memorandum of submissions dated 30 June 2023, together with a supplementary memorandum as to further evidence dated 17 July 2023 and:

• (a) a statement dated 1 December 2022 by the appellant’s lawyer in Mongolia, OO;
  
• (b) a translation of a Mongolian police ‘wanted poster’ relating to the appellant;
  
• (c) an audio transcript of a Mongolian Ministry of Justice press conference (available at a given website).

• (d) a printout of an Interpol ‘About Notices’ website page, explaining its colour-coded Notices;
  
  • (e) correspondence from Interpol relating to the appellant;
    
  • (f) United States Federal Bureau of Investigation notice about avoiding ‘money mules’;
    
  • (g) “New Zealanders at Risk of Being Money Mules for Fraudsters”

Scoop Media (18 November 2019);

(h) copies of Facebook messages relating to the appellant’s efforts to obtain documents from Mongolia;

(i) a copy of the online profile of Dr PP, law professor;

(j) A Tumurtogoo, PhysOrg Mongolians Sip 'Oxygen Cocktails' to Cope with Smog (1 May 2018) at https://phys.org;

(k) Zheng v Deng [2020] NZCA 614; and

(l) a printout from the website of the DEF health retreat centre Mongolia.

[66] During the appeal hearing, the Tribunal provided to the appellant a copy of Article 20.7 of the Criminal Code of Mongolia, relating to the “Illegal Use of Narcotic Drug and Psychotropic Substances”.

[67] In summary, counsel submits that the appellant has a well-founded fear of being persecuted because he is at risk of being physically harmed, mistreated, tortured, kidnapped, disappeared or killed by the Mongolian state authorities and corrupt elements within the police.

[68] To substantiate the well-foundedness of the appellant’s fear, counsel points to the following:

• (a) The appellant has already experienced harm in Mongolia that meets the threshold of serious harm in that he was detained, threatened, mistreated and physically harmed, and denied due process.
  
• (b) The appellant’s lawyer in Mongolia confirms her view that he will be at risk of serious harm in Mongolia, and will not be given a fair trial.

• (c) The appellant cannot rely on the expectation of a fair trial. If he returns to Mongolia, he will be subjected to a prosecution and trial, in the course of which he may be mistreated and subjected to undue pressure, denied due process and related rights, and be tried by a judicial officer who cannot be relied on to reach a fair verdict.
  
  • (d) This will happen because of the pervasive influence of corruption in Mongolia. The appellant has been set up to ‘take the fall’ for offending committed by others who have been able to rely on connections to wealthy and influential family, who have corruptly influenced the process. The appellant lacks any such wealth or influence and has no family on which he can rely.
    
  • (e) The appellant’s fears are supported by credible country information and by the Tribunal’s decision in AE (Mongolia) [2022] NZIPT 801960.
    

[69] On 20 July 2023, the respondent advised the Tribunal by email that, having considered the issue of exclusion, it did not consider that the appellant was liable to exclusion and so the respondent did not wish to make further submissions in that regard.

ASSESSMENT

[70] 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 Refugee Convention” or “the Convention”) (section 129); and
  
• (b) a protected person under the 1984 Convention Against Torture

(section 130); and

(c) a protected person under the 1966 International Covenant on Civil and Political Rights (“the ICCPR”) (section 131).

[71] In determining whether the appellant is a refugee or a protected person, it is necessary first to identify the facts against which the assessment is to be made. That requires consideration of the credibility of the appellant’s account.

Credibility

[72] It is accepted that the appellant has been charged with drug-related offences in Mongolia, that he jumped bail and fled the country and will now be wanted for breaching bail as well as the original charges.

[73] It is also accepted that the father of FF tried to pressure the appellant into admitting that he had supplied drugs to the other suspects, including by bribing the police to have the appellant assaulted in custody.

[74] The Tribunal does not accept, however, the appellant’s account of his non-involvement in terms of the supply of drugs. There are far-fetched elements in his account of having innocently allowed the use of his bank account as a vehicle for the transfer of money. It is suspicious that his bank records show the in-flow of money from the other suspects but are silent as to the one possible exculpatory piece of evidence – proof of the money being given to DD — because, the appellant claims, he happened to have on him a large supply of cash (substantially larger than he needed for the health resort bookings because he claims to have paid for those as well). Put simply, the evidence points to the appellant receiving money from the other suspects, consistent with their statements to the police that they had bought from the appellant the drugs which were found in their possession.

[75] It is also implausible that the other suspects would have falsely accused the appellant if he was, in fact, innocent. Having been found by the police in possession of a comparatively small quantity of drugs indicating personal use (a value of about NZ$570) rather than possession for supply, it would have been of some value to them (in terms of a more lenient sentence) to disclose the name of their supplier but it would have been far more problematic to have falsely disclosed to the police the name of a person who was not in fact the supplier. They could not have known whether the appellant would have an alibi, or be otherwise able to demonstrate to the police that they were lying. Making a false accusation would be likely to land the other suspects in significantly greater trouble with the police for wasting their time. Invited to comment on this, the appellant had no sensible answer. Faced with the choice of falsely accusing him, or giving the police the name of the real supplier or simply claiming not to know it, it is surprising that they would opt for the course that risked worsening their position.

[76] In assessing the chain of events that the appellant says led to the bad luck of his being charged, which included coincidences, fortuitous timing and the

surprising willingness of strangers to make false allegations against him, a more logical reason for the charges against the appellant is that he was, in fact, the supplier of the drugs. It is not however, ultimately necessary for the Tribunal to make such a finding because it is satisfied that he has been charged with such offending.

Summary of relevant facts as found

[77] Having regard to the credibility assessment, the Tribunal summarises the facts as found from the appellant’s case relevant to its evaluation of the risk to the appellant in Mongolia, and other relevant issues as set out below, as follows.

• (a) The appellant is from Ulaanbaatar, Mongolia. He is estranged from his father. His mother died in 2004. He has one sister, who resides in Mongolia. The appellant and his wife married in early 2016. In mid-2018, they had a son.
  
• (b) In late 2018, a friend, BB, introduced the appellant to DD.
  
• (c) In mid-November 2018, two police officers from the Mongolian Drug Control Agency came to the appellant’s work. They handcuffed him and drove him to the central police station, where he was questioned about DD and one FF, both of whom had been arrested, with others, for dealing in and consuming drugs. They claimed to have bought the drugs from the appellant. The appellant denied this. The appellant was then released and warned that he would be called in for further questioning.
  
• (d) A few days later, two police officers searched the appellant’s apartment. They found nothing.
  
• (e) Over the next month, the appellant received calls from the Inspector about four times a week, summoning him to the police station to answer questions. At the station, the appellant was not questioned about the drug dealing allegations. Sometimes, officers would get him to run errands.
• (f) The appellant learned that DD’s and FF’s families were wealthy and powerful. FF’s father was politically well-connected and had a good relationship with many "powerful decision-makers”. When the

appellant later saw DD, he claimed that his family and FF’s family planned to bribe the Inspector to drop the case.

(g) Soon after this, the appellant heard DD’s mother yell at the Inspector and senior police officers, saying “What are you doing to my child? You can’t treat my son and me like this”.

(h) In early January 2019, the appellant was approached by FF’s father, JJ, who urged the appellant to plead guilty, offering him MNT100 million. The appellant refused. JJ threatened him, saying “You don't know who you’re talking to. I want you to think carefully. This is a very good opportunity for you” and told him to think of his wife and baby.

(i) In January 2019, the appellant was again called into the police station. His lawyer told him that he was sick and could not attend.

(j) At the police station, the appellant saw DD and FF, and the other accused, KK, LL and MM with their lawyers. Inspector HH arrested them all for dealing in the drug ‘ice’. Warrants of arrest were produced, with the accused to be detained for 72 hours, after which a hearing would determine whether the detention would be extended.

(k) The accused were handcuffed and taken to prison. On the way, the appellant was able to call his wife. She called her cousin, NN, who called an acquaintance, a police officer, who told him that the appellant had been arrested for dealing drugs, that the case was complicated, and that they would need a good lawyer.

(l) On 17 January 2019, a bail hearing took place. All of the accused were to be detained indefinitely. The appellant’s wife found a new lawyer, OO. Around this time, the other accused were released. The appellant remained in prison, unable to have any visitors apart from his lawyer and the police and unable to have an account into which his wife could deposit money. He was refused access to the showers and was not given a change of clothes. He believed that he was treated like this to pressure him to confess.

(m) In late January 2019, a guard took the appellant to a small room where three prisoners beat him on his face and back with their fists for half an hour. His front tooth was broken, and his face bloodied.

He thinks that this was orchestrated by JJ to pressure him to confess.

(n) In early February, two men asked the appellant’s wife about the appellant, claiming to be acquaintances. They asked her how he was, and how she and her son were.

(o) In mid-February 2019, OO was able to obtain the appellant’s release from prison on bail.

(p) In March 2019, the appellant’s wife was again approached by the two men, who warned her that the appellant needed to “give us a decision quickly”. On arriving home, the appellant encountered the same men, who pushed him against a wall, causing him to hit his head. They threatened to harm him if he did not plead guilty.
(q) In early April 2019, three men knocked at the door, two of whom were the men who had threatened the couple before. They tried to force the door and yelled, “[JJ] is still waiting”, saying that they would find the appellant and his wife wherever they went.

(r) OO told the appellant that it would take a long time for the case to be resolved and that there was a serious possibility that it would not be decided in his favour, as the families of the other accused were powerful and influential.

(s) The appellant told the director of ABC agency about the situation. She offered to apply for visas to New Zealand and sent them to the agency’s office in China, in the interim. On 31 May 2019, they were issued visitor visas for New Zealand.

(t) At the last minute, the appellant and his wife left their son with the wife’s parents in Mongolia, who moved to a different neighbourhood in Ulaanbaatar. In late June 2019, the appellant and his wife departed China and flew to New Zealand. The wife has since returned to Mongolia to care for their child.
[78] It is against this factual background, and the country information which follows, that the appellant’s claim is to be assessed.

The Refugee Convention

[79] 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 Refugee Convention.”

[80] Article 1A(2) of the Refugee Convention 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 being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

[81] This requires the Tribunal to evaluate the reason why the appellant is outside Mongolia and does not depend on his returnability there; see GD (China) [2021] NZIPT 801793–794.

[82] In terms of Refugee Appeal No 70074 (17 September 1996), affirmed by the Tribunal in DS (Iran) [2016] NZIPT 800788, at [213], as “the essential distillation of the issues arising in the context of an inquiry into refugee status”, the principal issues are:

• (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?
  

[83] For the purposes of refugee determination, “being persecuted” requires serious harm arising from the sustained or systemic violation of internationally recognised human rights, demonstrative of a failure of state protection; see DS (Iran) [2016] NZIPT 800788, at [114]–[130] and [177]–[183].

[84] In determining what is meant by “well-founded” in Article 1A(2) of the Convention, the Tribunal adopts the approach in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, (1989) 87 ALR 412 (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 Refugee Appeal No 76044 (11 September 2008), at [57].

Objectively, on the Facts as Found, is there a Real Chance of the Appellant being persecuted in Mongolia?

Relevant country information — general

[85] The most recent United States Department of State 2022 Country Reports on Human Rights Practices: Mongolia (20 March 2023) (“Department of State report”) records, in its executive summary:

“Mongolia is a multiparty parliamentary democracy governed by a democratically elected government. The 2021 presidential election and 2020 parliamentary elections were peaceful and generally considered free and fair.

The National Police Agency and the General Authority for Border Protection, which operate under the Ministry of Justice and Home Affairs, are primarily responsible for internal security. The General Intelligence Agency, whose director reports to the prime minister, assists these two agencies with internal security. The armed forces report to the Ministry of Defense and assist internal security forces in providing domestic emergency assistance and disaster relief. Civilian authorities maintained control over the security forces. There were credible reports that members of the security forces committed some abuses.

Significant human rights issues included credible reports of: restrictions on freedom of expression and political speech including the use of criminal libel and other laws; serious government corruption; threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons; and forced child labor.”

[86] Mongolia is ranked 116th for corruption out of 180 countries by Transparency International (Transparency International Mongolia at www.transparency.org).

Relevant country information — judicial independence and fair trials

[87] As to the independence of the Mongolian judiciary and the ability of accused persons to access a fair trial, the Department of State report notes:

“Denial of Fair Public Trial

The constitution and law provide for an independent judiciary. Investigators, prosecutors, and judges faced heavy caseloads, resulting in frequent failure to adhere to time limits and other adverse impacts on cases. Some NGOs and private businesses reported continuing judicial corruption and third-party influence.

Trial Procedures

The law provides for the right to a fair and public trial, and the judiciary generally enforced this right.

The law requires all trials to be open to the public and the press, except for cases involving state secrets, underage defendants, or underage victims. In several cases, however, courts rejected defendants’ requests to open their trials to the public and media, citing lack of space, COVID-19-related social distancing requirements, or both. In such cases the courts generally allowed selected

representatives of the press to attend the opening and closing sessions of the trial. While the law recognizes the suspect’s right to have access to a lawyer, the WGAD stated suspects were frequently coerced to confess based on statements taken while the suspect believed themself to be a witness or by authorities promising an expedited review of the case. Many confessions occurred prior to receiving legal assistance. Of 12,000-13,000 cases yearly, 40 percent reportedly involved confessions.

Although the number of government-provided [defence] lawyers was adequate given the limited circumstances in which they are provided, their quality and experience were inconsistent, and many defendants lacked adequate legal representation. While the law gives [defence] lawyers full access to case files, [defence] lawyers were often given limited time to review files and were precluded from photocopying or taking photographs of the evidence. Judges often relied on confessions with little corroborating evidence. Furthermore, NGOs reported witness intimidation by government authorities and police and a lack of transparency in courts’ decision-making processes.

NGOs and observers suspected that nepotism and bribery of judges, prosecutors, and expert witnesses sometimes contributed to unwarranted convictions, dismissals, or reductions of sentences.”

[88] Similar observations about judicial independence and fair trial rights were made by Freedom House, in its report on Mongolia for 2022, at www.freedomhouse.org:

“Judges are appointed by the president on the recommendation of the Judicial General Council, whose five members in turn are nominated by the three tiers of courts, the bar association, and the Justice Ministry. However, legislation passed in 2019 allows the NSC to recommend the dismissal of judges. President Khürelsükh announced in September 2021 that he would voluntarily relinquish his authority to appoint judges to allow for greater judicial independence. However, this was not codified in legislation by the end of the year.

Corruption and political influence in the daily work of judges remain concerns.

...

Due-process rights are generally respected, but cases of arbitrary arrest and detention have been reported. The right to a fair trial can be undermined by intimidation or bribery.”

[89] See also the 2023 report by the United Nations Special Rapporteur on Independence of Judges and Lawyers, Preliminary Observations from the Special Rapporteur on Independence of Judges and Lawyers, Visit to Mongolia, at 20231115-eom-mongolia-sr-ijl-en.pdf (ecoi.net), which notes, in particular:

“Important steps to reform the judicial system have been implemented through Constitutional amendments in 2019 and the enactment of a new Law on Courts in 2021. I have had the opportunity to see the early implementation of these reforms, although more time, and increased financial resources, are needed before the full effects will be evident.”

Relevant country information – human rights and police custody

[90] Various sources indicate that persons in police custody in Mongolia are subjected to abuse, including to obtain confessions, and held in custody for a period that exceeds the maximum of 48 hours. A 2023 report of the United Nations Human Rights Council’s Working Group on Arbitrary Detention Visit to Mongolia, A/HRC/54/51/Add 2 (5 July 2023), following its visit to Mongolia from 3 to 14 October 2022, revealed the shortcomings of various aspects of police custody at para 13:

“The revisions to the Criminal Procedure Code, enacted by Parliament on 18 May 2017, introduced several amendments to align the arrest and detention system of Mongolia with its obligations under international human rights law. According to the revised code, initial detention in police custody cannot exceed 6 hours and the maximum period of detention without judicial oversight was reduced from 72 hours to 48 hours, which is commendable. Furthermore, the detaining authority must immediately inform the Prosecutor once an arrest is made and the Prosecutor must seek judicial authorization for the ongoing detention of the arrestee. If 48 hours expire without the court’s authorization being delivered, the detention centre must inform the relevant authorities and release the arrestee.”

[91] However, the report added:

“The Working Group consistently observed that the length of time people were held in police custody significantly exceeded the permitted maximum allowed 48-hour period on a routine basis.”

[92] Torture and other cruel, inhuman or degrading treatment or punishment was sometimes suffered by persons in police detention, particularly in relation to the coercion of confessions. The Department of State reported, for 2022:

“The law prohibits such practices. Nevertheless, the quasigovernmental National Human Rights Commission (NHRC) and nongovernmental organizations (NGOs) reported some prisoners and detainees were subjected to unnecessary force and cruel, inhuman, or degrading treatment or punishment, particularly to obtain confessions....

The NHRC reported that to coerce or intimidate detainees, authorities sometimes made access to legal counsel difficult. Human rights NGOs and attorneys reported obstacles to gathering evidence of torture or abuse. For example, although many prisons and detention facilities had cameras for monitoring prisoner interrogations, authorities often reported the equipment was inoperable at the time of reported abuses.”

[93] Freedom House similarly stated:

“While Mongolians face few major threats to physical security, there have been reports of police illegally using physical abuse to obtain confessions.”

[94] In its 2022 Transformation Index report on Mongolia, BTI 2022 Country Report, covering the period from 1 February 2019 to 31 January 2021, Bertelsmann Stiftung similarly reported, at p14:

“The annual reports of the National Human Rights Commission of Mongolia (NHRCM) submitted to parliamentary review have documented numerous civil rights violations such as police abuse of prisoners and detainees and poor conditions in detention centers. Although Mongolia ratified the Optional Protocol to the Convention against Torture in 2014, it did not follow through on its obligation to establish national preventive mechanisms (NPM).”

Relevant country information — Prison conditions

[95] Country information suggests that, while not all aspects of prison conditions breach human rights, some prison conditions in Mongolia are poor, with allegations of human rights abuses, mistreatment and substandard food, indicating that, at least in some respects, they do not meet internationally accepted standards. Freedom House noted, for example:

“Some prison and detention facilities feature insufficient nutrition, heat, and medical care.”

[96] The Working Group on Arbitrary Detention, following its visit to Mongolia from 3 to 14 October 2022, identified some positive developments at paras 56–58 but also expressed concern regarding behavioural regimes in prisons and the substandard food served to prisoners at para 62:

“Sentenced individuals generally serve their sentences in one of the three types of prisons: open prisons; closed prisons; or a closed special unit, of which there is only one. The Working Group takes positive note of the fact that convicted persons are only sent to prisons once their sentences are finalized and that there were no pretrial detainees in prisons during its visit.

Moreover, the Working Group notes as positive the fact that prisoners held in open prisons are employed and receive a salary. Moreover, they are also rewarded for good behaviour and work through a system of so-called bonus days, whereby every 30 days that prisoners work and good behaviour is reported are counted as 40 days served. This means that prisoners can accumulate up to 120 bonus days annually, thus reducing their overall sentences. However, bonus days can be deducted for breach of discipline and the Working Group is concerned about the arbitrary fashion in which this is decided as the process is not formalized.

Moreover, prisoners are subjected to a strict behavioural regime, which at times is dehumanizing. For example, all prisons have red lines painted on the floor, approximately a meter from each cell, to maintain a distance between prisoners and guards. Prisoners are not permitted to step across the red lines, meaning that, to cross the courtyard, they must walk around the perimeter. The Working Group received consistent testimony that prisoners are falsely penalized for stepping on the red line. The Working Group is also particularly concerned by the reluctance of prisoners to engage with the delegation owing to fear of reprisals, in the form of the deduction of bonus days, for having spoken to the Working Group.

...

In terms of the conditions of detention, the efforts to improve conditions in some prisons are notable. However, across all prisons it visited, the Working Group was disturbed about the food provided to prisoners. Prisoners receive palatable meat with their meals only once per week; during the rest of the week prisoners are served animal intestines. The Working Group invites the Government to address this situation as matter of priority in order to ensure compliance, in particular, with rule 22 of the Nelson Mandela Rules.”

[97] The Department of State noted that efforts are being made to counter the opportunity for the abuse of inmates:

“The Prosecutor General’s Office monitors conditions in prisons, arrest centers, and detention centers; it and the National Human Rights Commission (NHRC) conducted multiple scheduled, surprise, and complaint-based inspections of prisons, pretrial detention centers, arrest centers, and police-run detoxification centers. The NHRC also conducted investigations of credible reports of human rights abuses.”

Application to the facts

[98] In order to assess the risk to the appellant, it is necessary to consider the likely sequence of events, should he return to Mongolia.

[99] It can be assumed that, on arrival at a Mongolian border control area, the appellant will be detained. It is clear from the Interpol notices that alerts have been put in place and it can be safely inferred that, if the Mongolian authorities have been motivated enough to engage Interpol, their own security systems will have been activated. There will be an alert against the appellant’s name in any immigration or border control system. Such lawful detention would not be a breach of human rights, given the appellant’s admitted absconding while on bail.

[100] Having been detained, the appellant will be handed over to police custody. It will be recalled that he had previously been remanded in custody until his lawyer was able to persuade the court to release him on bail. As an absconder from court bail, it is unlikely that he will be granted bail again.

[101] At the time of his previous detention, the appellant had made no confession to the police, though his account of police tactics (pretending to treat him as a witness while fishing for a confession) tallies precisely with the advice of the United States Department of State as to known police practice. There will be no such pretence by the police the second time that the appellant is in custody, however, because he has already been charged with the drug-related offences, to which will now be added the offence of absconding while on bail.

[102] Of greatest concern is the fact that the high rate of dependence on confessions in Mongolia (40 per cent of all convictions) and the low evidentiary threshold at which the courts accept them, points to a continuing interest by the Mongolian police in getting a confession from the appellant, particularly as to the drug offences. In that regard, it is significant that the United States Department of State considers that “the quasigovernmental National Human Rights Commission (“NHRC”) and nongovernmental organizations (“NGOs”) reported some prisoners and detainees were subjected to unnecessary force and cruel, inhuman, or degrading treatment or punishment, particularly to obtain confessions”.

[103] It is not certain that the appellant will suffer cruel, inhuman, or degrading treatment or punishment at the hands of the police, or that, if he does so, it will be at the level of serious harm. But the country information is such that, the Tribunal is satisfied, there is a real chance of it happening. A real chance requires something of substance. It must be more than speculative, remote or a mere possibility. Here, the country information indicates that such mistreatment is regularly adopted by the police to force confessions. Further, while JJ is unlikely to have any further interest in bribing the authorities to harm the appellant (his son will have been dealt with by the courts a long time ago), it is significant that the prison officials were willing to act as JJ’s tool in trying to force the appellant to confess. There can be little confidence that prison officials would protect the appellant against police abuse.

[104] The risk to the appellant of serious harm while in police custody in Mongolia is one of some substance. It reaches the level of a real chance. That is sufficient to establish a well-founded fear of being persecuted.

[105] Given this, it is not necessary to address the risk of the appellant suffering serious harm while serving a post-conviction sentence of imprisonment. The Tribunal notes, however, that, if it were necessary, it would find that any risk in that context was no more than remote or speculative. While the country information raises a number of concerns about prison conditions, including the quality and amount of food and the strictness of prison regimes, it is clear that prisoner welfare is monitored reasonably effectively and the harm arising from such breaches of rights falls short of being serious in the context of the Refugee Convention. The Tribunal also takes into account that the quantity of drugs was small, and any sentence is unlikely to be a long one. For the reasons already given, it is not necessary to address this issue any further.

[106] For these reasons the appellant has a well-founded fear of being persecuted in Mongolia.

Is there a Convention reason for the persecution?

[107] In order to be recognised as a refugee, a claimant must establish not only a well-founded fear of being persecuted, but also that this 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 Refugee Appeal No 76235 (6 September 2002) at [173].

[108] Here, the risk of the appellant suffering serious harm at the hands of the police in the course of their efforts to force him to confess is not for any of the reasons identified in the Convention. Race, nationality and religion can be discounted without difficulty. Nor is there any evidence that the mistreatment of a detainee in order to force a confession would be for reasons of political opinion.

[109] Counsel submits that the remaining ground of ‘particular social group’ is justified because the appellant “is being targeted due to his lower socio-economic class and social status as a comparatively impoverished individual with no family support, contrasted with the wealthy elite dominating Mongolia”. Whether or not such a social group exists (and it need not be determined), there is nothing to indicate that it would be a reason, even as a contributing factor, for the mistreatment of the appellant. The country information simply does not suggest that lower socio-economic class persons with no family support are singled out for such mistreatment by the police.

Internal Protection Alternative

[110] The question whether the appellant has a viable internal protection alternative requires consideration as to whether the appellant can access and enjoy meaningful domestic protection elsewhere in Mongolia; see BI (Afghanistan) [2018] NZIPT 801220 at [50]; Refugee Appeal No 76044 (11 September 2008). It is not necessary to deal with this in any detail in this case as the agent of persecution is the state and is expected to have the machinery and the will to access all parts of the country. For this reason, the appellant has no viable internal protection alternative.

Exclusion

[111] The evidence before the Tribunal raises the issue of whether the appellant is excluded from the protection of the Refugee Convention under Article 1F, which provides:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

[112] In particular, in this instance, the Tribunal has turned its mind to whether the appellant is excluded under Article 1F(b), given that he faces charges in Mongolia for drug-related offences.

[113] First, given the findings which follow, we do not need to determine whether there are ‘serious reasons for considering’ because we find (as will be seen) that the offending (if it did occur) does not qualify as serious. The assessment which follows assumes, simply for the sake of the assessment of seriousness, that there are such serious reasons for considering.

[114] The term “serious crime” is not defined in the Convention. UNHCR, in its Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees CR/IP/4/Eng/REV1 (January 1992) has suggested, at p25, that the term “serious” is limited to “a capital crime or a very grave punishable act”. However, the New Zealand Court of Appeal in S v Refugee Status Appeals Authority [1998] 2 NZLR 291 (CA) ruled, at p297, that any interpretation of “serious crime” must be construed in the context of the Convention and its stated purposes, and the words must be given their ordinary meaning, Henry J stating that:

“[E]xclusion is directed to offending in the upper end of the scale, which is likely to attract a severe penalty, at least in the nature of imprisonment for an appreciable period of years. It is impossible to be any more precise but the general intention is clear and in the New Zealand criminal jurisdiction it can safely be said that the crime which is described as serious will be a ‘crime grave’.”

[115] Here, we are satisfied that the offending would not attract a sentence of imprisonment for an appreciable period of years. A media report “Mongolia Registers 179 Drug Related Crimes” www.Nnews.mn (20 April 2023) reports that:

“Under new Mongolian law, a person found guilty of drug trafficking will receive a sentence of two to eight years in prison.”

[116] It is most likely that the appellant would receive a sentence at the lower end of this spectrum. The amount of drugs involved was small and he has (so far as we are aware) a clean prior record. A sentence of two years’ imprisonment falls short of being “an appreciable period of years”.

[117] We are also satisfied that the offence would attract a similar sentence in New Zealand, if committed here. ‘Ice’ (crystal methamphetamine) is a Class A controlled drug under Schedule 1 of the Misuse of Drugs Act 1975. By section 6(1)(c) of that Act, it is an offence to supply any Class A controlled drug to any other person, or otherwise deal in any such controlled drug. By section 6(2)(a), every person who does so is liable on conviction to imprisonment for life. That being said, the penalty for a one-off offence involving one gram of the drug (the approximate amount that the respondent agrees would have been involved), would not attract a penalty of that magnitude. As counsel for the respondent submits:

“Having considered case law, particularly New Zealand case law, the Respondent does not believe it is in a position to submit that the aforementioned offences potentially committed by the Appellant reach, or possibly reach, a sufficient level of seriousness to warrant exclusion.”

[118] As the respondent noted, it is difficult to find New Zealand case law exactly on point. Generally, supply, or possession for supply, is accompanied by a range of other offences, which make sentence appraisal on the supply issue alone difficult to ascertain. Further, the amount is so small that it is well below the quantities usually reported by the New Zealand courts. A typical example is R v Lucinsky [2017] NZDC 17999, in which the offender was found with 10.59 grams of methamphetamine in his car, $2,120 in cash in his wallet and a further 41.25 grams in his home and $6,000 cash in bag in his bedroom. He had previous, historical drug convictions and a conviction for unlawful possession of a firearm. He was sentenced to three years and 11 months’ imprisonment. Given the comparative amount at issue in the appellant’s case, it is unlikely that he would receive a sentence of imprisonment longer than two years in this country. The Tribunal agrees with the respondent that it falls below the level of gravity required for exclusion.

[119] The Tribunal does not overlook that the appellant is also likely to be charged with absconding while on bail. It is uncertain what penalty would be imposed in that regard in Mongolia but we consider that it would be unlikely to constitute “an appreciable number of years”.

Conclusion on Claim to Refugee Status

[120] For the foregoing reasons, the Tribunal finds that the appellant faces a real chance of serious physical mistreatment by the police while in police custody, as part of their practice of forcing confessions out of suspects. Such mistreatment would amount to serious harm and would constitute a breach of his right to be free from cruel, inhuman or degrading treatment or punishment, pursuant to Article 7 of the ICCPR. He has a well-founded fear of being persecuted in Mongolia.

[121] The persecution, however, is not for any Convention reason.

[122] Given these findings, the appellant is not recognised as a refugee.

The Convention Against Torture

[123] Section 130(1) of the Act provides that:

“A person must be recognised as a protected person in New Zealand under the Convention Against Torture 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.”

[124] Section 130(5) of the Act provides that torture has the same meaning as in the Convention Against Torture, 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.”

Assessment of the Claim under Convention Against Torture

[125] 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.

[126] As to the “in danger of” threshold, as with the “real chance” threshold in the refugee enquiry, it requires a degree of risk which is more than speculative or remote — see AI (South Africa) [2011] NZIPT 800050–053, at [81]–[83]. That threshold is met.

[127] For the reasons given above, the Tribunal finds that there are substantial grounds for believing that the appellant is at risk of being subjected to severe mental or physical pain or suffering for one of the prescribed purposes (extracting a confession) at the instigation of a public official (police officers) if returned to Mongolia. Accordingly, the appellant is recognised as a protected person in New Zealand under the Convention Against Torture.

Exclusion

[128] For the reasons explained above in relation to the ‘exclusion’ provisions of the Refugee Convention, there is nothing in the evidence before the Tribunal which raises any issue under section 198(1)(c) of the Act (which statutorily imports provisions analogous to the exclusion of Article 1F) into the protected person jurisdiction.

Conclusion on Claim under Convention Against Torture

[129] For the above reasons, the appellant is a protected person under section 130 of the Act.

The ICCPR

[130] Section 131 of the Act provides that:

“(1) A person must be recognised as a protected person 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.”

[131] By virtue of section 131(5)(a) of the Act:

“(a) treatment inherent in or incidental to lawful sanctions is not to be treated as arbitrary deprivation of life or cruel treatment, unless the sanctions are imposed in disregard of accepted international standards.”

Assessment of the Claim under the ICCPR

[132] By virtue of section 164 of the Act (the exceptions to which do not, on the evidence, apply), the appellant cannot be deported from New Zealand because, as found above, he is recognised as a protected person under the Convention Against Torture. Accordingly, there are no substantial grounds for believing that the appellant is “in danger of” being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand (see sections 131(1) and (6) of the Act).

[133] The appellant does not require protection under the ICCPR. He is not a protected person within the meaning of section 131(1) of the Act.

Conclusion on Claim under ICCPR

[134] For the above reasons, the appellant is not a protected person within the meaning of section 131(1) of the Act.

CONCLUSION

[135] For the foregoing reasons, the Tribunal finds that the appellant:

• (a) is not a refugee within the meaning of the Refugee Convention and therefore is not a refugee under section 129 of the Act;
  
• (b) is a protected person within the meaning of Article 1(1) of the Convention Against Torture and, therefore, is 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 International Covenant on Civil and Political Rights and, therefore, is not a protected person under section 131 of the Act.
  

[136] The appeal is allowed.

Order as to Depersonalised Research

[137] 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 and/or be likely to endanger the safety of the appellant or others.

[138] 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.

For and on behalf of the panel

“Judge M Treadwell” Judge M Treadwell Chair

Certified to be the Research Copy released for publication.

Judge M Treadwell Chair