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AL (South Korea) [2016] NZIPT 800858 (19 May 2016)

Last Updated: 17 October 2016

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND

[2016] NZIPT 800858

AT AUCKLAND

Appellant: AL (South Korea)

Before: B L Burson

Counsel for the Appellant: T Mukusha Counsel for the Respondent: No Appearance Date of Hearing: 27 January 2016

_{Date of Decision: 19 May 2016}

_DECISION

INTRODUCTION

[1] The appellant is a citizen of the Democratic People’s Republic of Korea

(“North Korea”) and the Republic of South Korea (“South Korea”).

[2] The appellant claims to be at risk of being persecuted or subjected to serious harm in North Korea on account of him having defected to South Korea. He claims a well-founded fear of being persecuted or subjected to serious harm in South Korea on account of discrimination he has encountered in South Korea as a North Korean defector. The central issue to be determined is whether the appellant’s fears are well-founded.

[3] The Tribunal regrets the delay in reaching this decision which has been caused by lengthy delays in obtaining post-hearing psychiatric evidence about the appellant’s state of mental health which, as will be seen, has become a significant issue on appeal. Fairness required the Tribunal to allow the appellant time to obtain further evidence which has only been received on 2 May 2016.

[4] Although the appellant’s appeal was filed out of time, having heard from the appellant as to the reason for the delay, which arose from a lawyer he had previously instructed failing to lodge the appeal on time, the Tribunal has determined that special circumstances exist which warrant the extending of time for filing the appeal.

THE APPELLANT’S CASE

[5] The appellant was born in the mid-1970s in North Korea as the younger of his parents’ two children. While his father was alive and working, the family’s situation was relatively stable. After his father’s death in the early 2000s, the family’s economic situation worsened significantly. At the time, the North Korean economy was in difficulty and, left to fend for themselves, his family experienced increasingly harsh living conditions. Within two months of his father’s death, his mother fled across the border to China. His sibling followed a few months thereafter.

[6] The appellant himself tried to eke out a living in North Korea for a further two years or so but, by late 2003, he too had decided that life was impossible and it was difficult to survive and he too fled across the Tumen River into China. His mother and brother both made their way to South Korea where they were granted asylum. His brother sent word to the appellant about how it was possible to be taken from China to South Korea and, using a contact suggested by his brother, the appellant himself made the same journey, arriving in South Korea in late 2003.

[7] Upon arrival at Incheon airport, the appellant was taken to a reception centre for North Korean defectors where he was debriefed about his background circumstances in North Korea. In December 2003, he was recognised as a protected person under the Korean Refugees Protection and Settlement Act 1997 and a certificate issued to this effect. In March 2009 he was issued with a South Korean passport.

[8] Following recognition under this Act, the appellant was transferred to a Hanawon Resettlement Centre where he remained for the next few weeks, being taken on field trips and receiving other instructions to orient himself to his new life in South Korea.

[9] After he left the Hanawon Centre, things became much more difficult for the appellant. The South Korean government had provided him, as part of its

resettlement policy, with subsidised accommodation and a sum of money to assist his resettlement and he completed a vocational trade-related course and began working on construction sites. In spite of this assistance, his accent marked him as being North Korean and he never obtained any settled employment, which he attributes to his North Korean origins. He did, however, find casual work as a day labourer from time-to-time.

[10] Disheartened at the discrimination he encountered, the appellant tried to better his prospects by obtaining a university degree. He enrolled in a South Korean university in 2007 and began studying for a Bachelor’s Degree in Science specialising in an engineering discipline. Half of the fees were paid by the South Korean government and the university waived the other half. The appellant was given a student benefit to meet his subsistence needs. Although he socialised with some fellow students, having discussions on campus and playing sports some weekends, he also encountered ostracism and hostility from others. On one particular occasion, a South Korean student in his class wrote the word “rapist” over his class picture, leaving him particularly humiliated and distressed.

[11] The appellant stopped studying in 2008 to enable him to earn some money. On one occasion, when he did find more regular employment in small manufacturing business, he was dismissed without notice after a couple of weeks for no reason. He believes this was simply because his accent had marked him out as being North Korean. He was not paid the wages he was owed and only after making a formal complaint did he receive what he was owed. The appellant’s studies were further interrupted in around 2009 when he became the victim of a motor vehicle accident which resulted in a significant injury to his leg. He obtained the services of a lawyer and successfully sought compensation from the insurance company of the driver of the vehicle who had crashed into him.

[12] He resumed his university studies in 2010 and, in 2013, graduated with a bachelor’s degree. Thereafter, the appellant tried to find employment in his chosen career. He estimates that he applied for more than 50 jobs but was only ever invited to one interview and that itself only being in respect of a part-time job. He was not offered this employment. The appellant attributes his lack of success to his background as a North Korean. The application forms required him to disclose his date and place of birth which identified his North Korean origin to prospective employers. He believes this is why he was never invited to any interviews.

[13] In around 2011, the appellant was the victim of an unprovoked assault. He occasionally attended a church. On one such occasion, while conversing with someone at the church about North and South Korea, this person without warning punched the appellant in the face, causing injury to his mouth. He had to attend hospital to have his front tooth replaced. The appellant reported the incident to the police and the man was investigated. The appellant told the police that he was not interested in having the man punished but wished to see reparation for the injury he suffered. The man was ordered to pay compensation to the appellant in respect of the injuries he sustained.

[14] The appellant remained in regular contact with his mother throughout his time in South Korea. Although she lived in a different city, it was not situated far away and they managed to remain in regular contact. Contact with his brother was less frequent as his brother resided in a city far from his own. The appellant understood from him that his situation was also difficult economically and, for this reason, his brother left South Korea for another country in the mid-2000s. The appellant has not seen or heard from him since that time.

[15] During his time in South Korea, the appellant met from time-to-time with a group established by the South Korean government, linked to the Hanawon programme, to assist North Koreans settle in South Korea. He talked to the officers about the problems he was encountering but did not receive any great help. He tried to see the head of the organisation about his problems but his request for a meeting was declined.

[16] Over time, the appellant felt increasingly lonely and isolated. In his experience, South Koreans were generally wary of North Koreans and, on the whole, North Koreans remain economically disenfranchised and socially ostracised. The two countries exist in a state of war, which makes people nervous. Moreover, from time-to-time, the news media in South Korea reported that North Korean spies have been discovered living and working in South Korea and this only heightens the suspicion of North Koreans living in South Korea. When such incidents were reported in the media, any work colleagues the appellant had at the time would question him about whether he was also a North Korean spy, which only compounded his sense of isolation.

[17] The appellant became attracted to and formed a romantic relationship with a South Korean woman but his hopes of marrying her were dashed when her parents refused to consent because he was from North Korea. The appellant was heartbroken at this turn of events.

[18] As time wore on, the appellant became depressed about the way he was being treated in South Korean society. He thought many times about committing suicide. On two such occasions, he tried to put these thoughts into action. On the first occasion, in around 2010, he went to the top of the Han River Bridge and stared at the precipice. On the second occasion, in 2011, he went to the top of an apartment building and again stood on the upper ledge of the building. He was conflicted by the desire to end his life and his understanding that he was breaking a deeply-held Confucian taboo by committing suicide before the natural deaths of his parents. On both occasions, he pulled back from doing so but remains profoundly distressed at the thought of returning to South Korea as he has no doubt he would return to face similar treatment. He told the Tribunal that he feels that there would be no option but to end his life.

Material and Submissions Received

[19] On 25 January 2016, the Tribunal received a bundle of evidence from counsel comprising a further statement dated 20 January 2016 from the appellant, and a translation of a certificate of injury issued to the appellant in September

2011 confirming the injury to his teeth as a result of dental trauma. Also attached to this bundle of evidence was country information relating to the socio-economic situation of North Korean defectors in South Korea and critiques of the approach taken in various receiving states in the northern hemisphere to claims for asylum by North Korean defectors.

[20] On 25 January 2016, the Tribunal received a memorandum of submissions of counsel. Counsel made detailed opening and closing submissions.

[21] Counsel submitted that this is a case by “an ordinary man cherishing no more than an ordinary life”. His expectations from the South Korean government were “truly ordinary”; namely, to be treated with dignity and respect and without discrimination. Counsel submits there has been a clear failure of state protection in this regard. Counsel submits that the appellant’s North Korean identity forms an immutable characteristic and, as such, North Koreans constitute a particular social group for the purposes of the Refugee Convention. Alternatively, the appellant retains his North Korean nationality and therefore his predicament was contributed to by the alternative ground of nationality.

[22] A psychiatric report dated 27 April 2016 by Dr Aloma Parker, a registered clinical psychologist, has been filed. In her report, Dr Parker notes that by finding employment in South Korea and in New Zealand and completing tertiary studies in

South Korea, the appellant has shown that he possesses “great resilience”, but nevertheless she confirms a diagnosis of Post-Traumatic Stress Disorder (PTSD) with associated anxiety and depression. These conditions are, Dr Parker states, “likely to be significantly exacerbated if he were to return to either North or South Korea” which puts him at increased risk of committing suicide if returned to either country. Dr Parker’s assessment “raises considerable concern about [his] future mental health” and she states that his past history of suicide attempts puts him at risk of future attempts.

[23] According to Dr Parker, the events giving rise to the appellant’s PTSD and the associated conditions spanned his experiences in both countries. He suffered significant deprivations in North Korea, particularly following the death of his father. He described his life in South Korea as “a nightmare” due to the negative perception held by South Koreans about North Koreans, and because of the discrimination and assault he encountered there. Dr Parker notes that the appellant was tearful when recounting his rejection by the family of the woman he wished to marry simply because he was from North Korea.

ASSESSMENT

[24] Under section 198 of the Immigration Act 2009 (“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”) (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).

[25] 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

[26] The appellant is a credible witness. His evidence was given consistently with what he has said in the past, and is generally consistent with country information relating to the discrimination faced by North Korean defectors in South Korea. Keys aspects of his evidence are corroborated by credible documentation on the Refugee Status Branch file, including the certificate issued by the South Korean authorities confirming his status as a North Korean defector and medical reports relating to his physical injuries sustained as a result of the assault. His current poor state of mental health is confirmed by the report of Dr Parker.

[27] The appellant’s account is therefore accepted in its entirety.

[28] The Tribunal finds that the appellant was born in North Korea in the 1970s. His early life was uneventful and his father’s employment inoculated him from the worst while living in North Korea. Following the death of his father in the early

2000s, the situation of his family worsened drastically. No longer shielded from the effects of the collapse of the North Korean economy, the appellant’s mother, brother and the appellant himself in turn fled from North Korea to avoid destitution; first to China, and then to South Korea where, by the mid-2000s, they had all been granted protection and recognised as South Korean citizens.

[29] The appellant struggled to find settled employment in South Korea on account of discrimination against him as a North Korean defector. He was only able to obtain part-time casual employment as a labourer. He was ostracised by his South Korean work colleagues. Following completion of the required Hanawon Resettlement Program, he was provided with subsidised housing and a lump sum to assist him to settle. Determined to improve his lot, the appellant enrolled in university in the mid-2000s, obtaining a Bachelor of Science degree majoring in an engineering discipline. While he had some association with fellow students, he was largely ostracised by the student body and faced hostility from some. However, despite applying for over 50 jobs, the appellant was unsuccessful in obtaining even an interview, notwithstanding the booming South Korean economy, because his curriculum vitae and application indicated him to be a North Korean defector. He was unable to find employment as an engineer and, needing to survive, was reduced to scavenging rubbish from a dump to take to recycling centres for work.

[30] In around 2009, the appellant was assaulted while at church, causing an injury to his teeth. At his request, the person was not prosecuted but was ordered to pay compensation.

[31] The discrimination the appellant encountered has caused him to consider committing suicide and, on two occasions, he has put the plan into effect, only to draw back at the last minute. If he returns to South Korea and encounters the same discrimination as he has encountered in the past, he will attempt to commit suicide, and may be particularly prone to do so once his elderly mother, now aged in her seventies, has passed away.

[32] The appellant’s claim will be considered against this background.

The Refugee Convention

[33] 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.”

[34] 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

[35] In terms of Refugee Appeal No 70074 (17 September 1996), the principal issues are:

(a) Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?

(b) If the answer is yes, is there a Convention reason for that persecution?

Assessment of the Claim to Refugee Status

Relevant Legal Principles

Being persecuted and serious harm

[36] 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].

[37] In DS (Iran), the Tribunal rejected the proposition that any such breach constitutes, by its very existence, being persecuted; there must be evidence of serious harm. It also emphasised that the individual characteristics of the claimant can serve to project Convention-based protection outwards in certain circumstances, such that breaches of human rights not usually amounting to being persecuted may do so on the individual facts of the case; see [159]-[176]. It noted at [172]:

“In the context of the inquiry into serious harm, the claimant’s particular individual characteristics shape the specific objective factors of nature, intensity and duration of harm, to project Convention protection outwards in appropriate instances. For example, gender often shapes the 'nature' of harm as female victims of arbitrary detention may be differentially at greater risk of being sexually assaulted than their male counterparts. Age (both youth and elderly) and associated emotional, physical or psychological frailty may shape the intensity factor, such that harm inflicted on a healthy adult male not of sufficient seriousness may be serious if inflicted on a child or elderly claimant. The ongoing and often life-long discrimination felt by members of marginalised groups in some societies such as women or LGBTQI individuals shapes the factor of ‘duration’ of harm. Such discrimination can also shape the intensity of harm by leading to pervasive self- oppression; see here discussion in Refugee Appeal No 74665/03 [2005] NZAR 60 at [113]-[115].”

[38] In AC (Syria) [2011] NZIPT 800035, the Tribunal accepted that issues such as age, gender and state of health are relevant to assessing whether any treatment to which the claimant would be exposed would amount to a breach of Article 7 of the ICCPR. The Tribunal noted at [102]:

“Under the ‘human rights approach’ to the interpretation of the ‘being persecuted’ element of the refugee definition, Article 7 ICCPR is a mechanism to identify forms of serious harm. Issues such as the age, gender and standard of health of a claimant are thus already factored into the refugee status inquiry as such personal characteristics are relevant to assessing whether treatment amounts to a breach of Article 7 ICCPR – see Human Rights Committee in Vuolanne v Finland 265/87 (7 April 1989) at [9.2]; see also in this context, Kalin and Kunzli (op cit) at p329. Reference can also be had to jurisprudence of the European Court of Human Rights in Ireland v United Kingdom [1978] ECHR 1; (1978) 2 EHRR 25 at [162] and subsequent cases regarding the ECHR analogue to Article 7 of the ICCPR; Taunoa v Attorney General at [91] per Elias CJ and [153] per Blanchard J.”

[39] Also relevant to the appellant’s predicament is the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). In Refugee Appeal Nos 75221 and 75225 (23 September 2005), the Refugee Status Appeals Authority (RSAA) recognised that the ICESCR was not an ‘obligation-free’ zone. Rather, it creates two obligations on states of immediate application: to begin taking steps to progressively realise the rights (see [85]-[88]) and to do so in a non-discriminatory fashion (see [89]-[90]).

[40] In BG (Fiji) [2012] NZIPT 800091 at [90]- [92], the Tribunal re-affirmed the relevance of ICESCR-derived rights to the refugee status inquiry as rights in themselves. The Tribunal rejected the notion that international human rights law is to be approached from a hierarchical perspective in which civil and political rights take precedence over, or are a superior form of rights, to their economic, social and cultural counterparts. At [95], the Tribunal noted the development by the ESCR Committee of a number of General Comments, detailing the existence of a minimum core obligation and identification of what it considers to be the essential attributes of various ICESCR rights, including the right to work.

[41] The ESCR Committee in General Comment No 18: The Right to Work (Art 6 of the Covenant) (6 February 2006), emphasised the importance of assuring the individual’s right to freely chosen decent work as a fundamental aspect of individual dignity. It also emphasised the importance of work not only for professional development, but also for social and economic inclusion. Importantly for present purposes, work must be available without discrimination on a prohibited basis such as race or national origin.

[42] Article 2(2) obliges each State Party “to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. In General Comment No 20: Non- discrimination in Economic, Social and Cultural Rights (Art 2, para 2, of the ICESCR) (2 July 2009), the Committee gave a detailed account of the content of the obligation in the context of the ICESCR. At [7], the Committee reiterated that “non-discrimination is an immediate and cross-cutting obligation in the Covenant”. The Committee recognised that discrimination was pervasive in the private sphere, including in the workplace; see [11]. States are ‘encouraged’ to adopt specific legislation that prohibits discrimination in the field of economic, social and cultural rights and design and implement strategies, policies, and plans of action in order

to address both formal and substantive discrimination by public and private actors;

see [37]-[38].

[43] That those interferences with the right to work can validly found a claim for refugee status has long been accepted. Atle Grahl-Madsen The Status of Refugees in International Law (Vol 1, Lieden, 1966) at p208 stated that it was by that time “an established practice” that “economic proscription so severe as to deprive a person of all means of earning a livelihood” constituted being persecuted. It is a position adopted by leading academic commentators over the following years; see, for example J C Hathaway The Law of Refugee Status (1st ed, Butterworths, Toronto, 1991); G S Goodwin-Gill The Refugee in International Law (2nd ed, Clerendon, Oxford, 1996) at p68; M Foster International Refugee Law and Socio-Economic Rights: Refuge From Deprivation (Cambridge University Press, Cambridge, 2007) at pp95-103; J C Hathaway and M Foster The Law of Refugee Status (2nd ed, Cambridge University Press, Cambridge, 2014).

[44] While the law in relation to socio-economic rights as a basis for claiming refugee status is an evolving one, there appears to be consensus that mere financial hardship arising from workplace discrimination will not suffice, but that threats to the claimant’s capacity to subsist through wholesale denial of access to the labour market on discriminatory grounds may do so. There is a large grey zone between these two poles, encompassing situations where the claimant is not wholly shut out of the labour market on discriminatory grounds to the point where their livelihood or capacity to subsist is threatened, but discrimination in accessing employment nevertheless impacts on them in some way which transcends simple financial hardship.

[45] After detailed examination of claims for refugee status grounded in the right to work, Hathaway and Foster conclude (above, p259):

“... while mere reduction in the overall quality of working conditions will not ground a claim for feared persecutory harm, it is otherwise where the scale or gravity of such reductions mean there is, in substance, the risk of degrading treatment or another violation of human rights law.”

[46] As, then, with most aspects of refugee law, much will depend on the particular facts of the case.

Failure of state protection

[47] When can a state be said to have failed in its duty to protect its citizens for the purposes of the Refugee Convention? The question has generated competing

‘protection’ and ‘accountability’ theories. The protection theory inquires as to whether there will be a breakdown in the protection available to the claimant in the country of origin. It focuses on the fact of breakdown rather than seeking to attribute state responsibility to it. Its jurisprudential bedrock is the decision of the Supreme Court of Canada in Attorney-General (Canada) v Ward [1993] 2 SCR

689 at 716. La Forest J observed:

“The international community was meant to be a forum of second resort for the persecuted, a "surrogate", approachable upon failure of local protection. The rationale upon which international refugee law rests is not simply the need to give shelter to those persecuted by the state, but, more widely, to provide refuge to those whose home state cannot or does not afford them protection from persecution. The former is, of course, comprised in the latter, but the drafters of the Convention had the latter, wider purpose in mind. The state's inability to protect the individual from persecution founded on one of the enumerated grounds constitutes failure of local protection.

I, therefore, conclude that persecution under the Convention includes situations where the state is not in strictness an accomplice to the persecution, but is simply unable to protect its citizens.”

[48] That a mere inability to protect may suffice has also been accepted by the High Court of Australia; see, for example Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 per McHugh J at [36]. The protection theory has formed one of the foundations of New Zealand refugee law. In Refugee Appeal No 2039/93 Re MN (12 February 1996) the RSAA observed (emphasis added):

“Within months of the Authority's first hearings in June 1991, it accepted in Refugee Appeal No 11/91 Re S (5 September 1991) 14-19 that there are four situations in which there can be said to be a failure of state protection:

1. Persecution committed by the state concerned.

2. Persecution condoned by the state concerned.

3. Persecution tolerated by the state concerned.

4. Persecution not condoned or not tolerated by the state concerned but nevertheless present because the state either refuses or is unable to offer adequate protection.”

[49] In contrast, and as the name suggests, under the accountability theory a failure of state protection arises only where the state is in some way accountable for the persecutory harm. Under the accountability theory, mere inability would not suffice to constitute ‘failure’. Two forms of the accountability theory have emerged over time. The first, which held sway for many years in countries such as Germany and France, denied that non-state actors could ever be agents of persecution where no functioning government was in existence, or the state was not accountable for the harm. This approach was criticised by the House of Lords in R v Secretary of State for the Home Department, ex parte Adan and Aitsegeur

[2000] UKHL 67, [2001] 1 All ER 593 which, effectively, injuncted transfers from the United Kingdom to those countries otherwise rendered permissible under the regional arrangements within the European Union for the transfer of asylum- seekers.

[50] The entry into force of the European Union Qualification Directive (“the

2004 Qualification Directive”) in 2004 put an end to the use of that from of the accountability theory which denied the legitimacy of non-state actors of persecution within the European Union. While this form of the accountability theory is now widely discredited, a second form persists which s holds that there is no failure of state protection provided the state is doing what it reasonably can, or has exercised due diligence in taking steps to prevent the future risk of harm. The high-water mark of such reasoning is the well-known decision of the House of Lords in Horvath v Secretary of State for the Home Department [2000] UKHL 37, [2001] AC 489.

[51] The Horvath approach is attributed by some commentators to the protection theory, as it endorses the rejection of the accountability theory that had influenced continental jurisprudence. Insofar as it (over)emphasises the formal structures for protection rather than their risk-reducing efficacy, there is certainly a protection- oriented element to it. Nevertheless, it is more appropriately to be regarded as more of a hybrid as, at its core, it makes the failure of state protection contingent on it being shown that the state has not taken ‘reasonable steps’ within its power in relation to the risk in question. The Horvath approach is, in this regard, redolent of the accountability theory; see here R Husain QC “International Human Rights and Refugee law – the United Kingdom” in B Burson and D Cantor (eds) Human Rights and the Refugee Definition (Brill/Nijhojff, 2016) at p145; S Kneebone “Moving beyond the State: Refugees, Accountability and Protection” in S Kneebone (ed) The Refugees Convention 50 Years On: Globalisation and International Law (Aldershot, Ashgate, 2003) at p291.

[52] Properly construed, the protection theory critically focuses not on acts of the state, but the predicament of the claimant. While state action or inaction is of course factored into the inquiry, a surrogate protection need arises simply because the state will not or cannot do anything to reduce the risk of persecutory harm to below the real chance threshold. The predicament of the claimant remains unaddressed. While encompassing deliberate state choices not to act, under the protection theory, ‘failure’ is essentially neutral in terms of the evaluative exercise being undertaken by the decision-maker. While, in truth, in cases of an inability to

protect despite evidence of the state’s ‘reasonable willingness’, it may be more appropriate to categorise the situation as an absence of State protection contributing to persecutory harm, provided the essentially neutral nature of ‘failure’ is understood, there is no good reason to further complicate an already complex inquiry by introducing another descriptive term.

[53] In any event, the both the due diligence approach and the Horvath hybrid form of the protection/accountability theories has been widely criticised as being inconsistent with the Refugee Convention itself; J C Hathaway and M Foster (above) at pp309-319; G Goodwin-Gill and J McAdam The Refugee in International Law (3rd ed, Oxford University Press, Oxford, 2007) at p11. It has been expressly rejected in New Zealand: see Refugee Appeal No 71427/99 [2000] NZAR 545, [2000] INLR 608 at [63]; BG (Fiji) [2012] NZIPT 800091 at [110]- [117]. It has been rejected in favour of an approach which focuses on the factual efficacy of protection, consistent with the approach by decision-makers in other countries including Australia, Canada, Austria, Belgium and Switzerland; see here the cases cited in J C Hathaway and M Foster (above) at pp316-317.

[54] While the Horvath approach was replicated under the original 2004

Qualification Directive, its application in the European Union has been affected by the decision of the Court of Justice of the European Union (CJEU) in Abdullah and others v Germany (C-175/08, C-176/08, C-178/08 and C-179/08, 2 March 2010). At [68]-[69], the CJEU stated, albeit in the context of a discussion about cessation of refugee status, that both inability and ability to protect was a “crucial element” in both recognition and cessation of refugee status and that, in the context of cessation, it was necessary to show that the receiving state “is unable to guarantee... protection against acts of persecution”. Furthermore, in response to widespread criticism of the adoption of the Horvath approach in the 2004

Qualification Directive, the ‘recast’ 2011 Qualification Directive was amended to include a specific requirement of efficacy; see Article 7(2).

[55] That said, the 2011 recast version retains the analytical premise of its predecessor that protection is “generally” provided by the operation of an effective criminal justice system; implying that failure is somehow an exceptionality, linked to the particular circumstances of the individual claimant; see here Bagdanavicius v Secretary of State for the Home Department [2005] EWCA Civ 1605 per Auld LJ, and AW (sufficiency of protection) Pakistan v Secretary of State for the Home Department [2011] UKUT 31 (IAC). While a welcome clarification that the strict application of the formalistic Horvath approach is to be avoided, this seems

potentially problematic in that the circumstance which causes a ‘general’ system to fail – such as ethnicity or political opinion – will typically not be unique or particular to the claimant. Nevertheless, the purport of this clarifying jurisprudence and Article 7(2) of the Recast Qualification seems clear; there will be failure of state protection under European Union asylum law when the state is unable to provide effective protection against persecutory harm.

[56] These potential complexities aside, consistent with this increasingly settled international position, New Zealand refugee law is clear: even where a state is doing all it ‘reasonably can’ or otherwise exercising ‘due diligence’, if, for whatever reason, the state cannot reduce the risk of persecutory harm arising from unlawful interference by non-state agents (or its own agents for that matter) with the claimant’s human rights to below the level of it being “well-founded”, a failure of state protection arises on the facts. Given the palliative focus of refugee status determination, this does not imply the state of origin is in any way “accountable” for the claimant’s predicament, simply that the surrogate protection of the international community is necessary to address that predicament, and ensure the continued lawful enjoyment of the right or rights in question.

Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to North or South Korea?

The appellant’s nationality

[57] In recent years, North Korean nationals have been required in a number of jurisdictions to establish not only a well-founded fear of being persecuted in North Korea, but also in relation to South Korea, even though at the time of application for refugee status the claimant has not formally been granted citizenship by South Korea. This practice derives from the text of Article 1A(2) of the Refugee Convention, the second paragraph of which states:

“In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”

[58] The factual basis for this practice rests on the claim by South Korea that it has sovereignty over the entirety of the Korean peninsula. According to the relevant provisions of the Korean Constitution and its Nationality Act, persons born in North Korea are citizens of South Korea by descent because, under the 1948

Constitution, North Koreans living in North Korea at that time were recognised as

South Korean nationals.

[59] The correctness of the assumption that all North Koreans are by law South Korean citizens has been challenged in a recent article by Seungwhan Kim “Lack of State Protection or Fear of Persecution? Determining the Refugee Status of North Koreans in Canada” (2016) 28(1) International Journal of Refugee Law pp85-108. Drawing on examination of the relevant laws in North Korea and South Korea, as well as expert evidence given in cases examining this issue in the United Kingdom and in Australia, Kim concludes that there are lacunas. While other legal pathways by which South Korean nationality can be conferred exist outside recognition as a protected person, there are theoretical gaps and “significant procedural obstacles that transform the automatic nature of South Korean nationality for North Koreans into the discretionary grant of citizenship” (p92).

[60] It is not necessary on the fact of this case to address this issue in detail, nor the critiques Kim makes of the relevant case law. The appellant has produced both the certificate issued to him in 2003, recognising him as a protected person under the South Korean Refugees Protection and Settlement Act 1997 and his South Korean passport which declares him to be a national of South Korea. There can be no doubt that this particular appellant does possess dual nationality. In accordance with the express terms of the Refugee Convention itself, the appellant must establish that he has a well-founded fear of being persecuted in both North and South Korea to be entitled to be recognised as a refugee in New Zealand under section 129 of the Act. Counsel did not seek to argue to the contrary.

North Korea

Country information

[61] A recent article notes that, over time, the profile of North Korean defectors has changed. Whereas much defection in the 1990s and 2000s was due in large part to starvation conditions inside North Korea, defectors increasingly comprise elements of the North Korean middle class which has emerged on the back of a burgeoning black-market economy and which, thanks to increased information flow, is better informed about life in South Korea; see “The Changing Face of North Korea’s Refugees” The Bangkok Post (30 December 2014) at

www.bangkokpost.com. Nevertheless, flight remains risky, and those captured and repatriated – usually by the Chinese authorities – face “severe punishment”.

[62] It is clear that, should the appellant be forcibly returned to North Korea, he faces a real chance of being persecuted. Bruce W Bennett in Preparing for the Possibility of a North Korean Collapse (Rand Corporation, 2013) notes at pp44-45:

“In 2009, it was noted that “[t]ens of thousands of North Koreans have crossed the border [into China] seeking a better life. Some 15,000 have successfully defected to the South, while an estimated 100,000 to half a million are in China seeking asylum.” By 2012, the number of North Korean refugees in South Korea had grown to about 23,000, an immense increase over refugees who had escaped to the ROK [Republic of Korea/South Korea] in previous years. Since North Koreans do not legally have freedom of movement, even relocating to the Chinese border is an act of defiance, and crossing that border is an act subject to imprisonment or execution for anyone returned to North Korea.”

[63] The United States Department of State Country Reports on Human Rights

Practices 2015: North Korea (13 April 2016) notes, at section 1a:

“Defector and refugee reports noted instances in which the government executed political prisoners, opponents of the government, repatriated defectors, government officials, and others accused of crimes. The law prescribes the death penalty for the most “serious” or “grave” cases of “anti-state” or “anti-nation” crimes, which included: participation in a coup or plotting to overthrow the state; acts of terrorism for an anti-state purpose; treason, which includes defection or handing over of state secrets, broadly interpreted to include providing information about economic, social, and political developments routinely published elsewhere; suppressing the people’s movement for national liberation; and “treacherous destruction.”

[64] Other human rights abuses include widespread torture and other serious mistreatment of detainees and the existence of an extensive network of detention and labour camps where inmates, including political prisoners, are subjected to a harsh forced labour regime and detained in generally life-threatening conditions; see section 1c.

[65] Kim (above, p89) recounts the fate of a group of young defectors who were returned to North Korea, via China, by Laotian officials:

“In 2013, nine North Koreans aged between 15 and 23 attempted to seek asylum in the South Korean embassy in Laos via China with the help of a missionary, known as ‘MJ’. Unfortunately, while on a bus en route to the South Korean embassy in Laos, they were arrested by the local police for entering Laos illegally and were subsequently detained by Laotian immigration officials for more than two weeks. During the period of detention, it was alleged that MJ’s wife repeatedly contacted the South Korean embassy for help, but South Korean embassy officials did not visit the North Korean youngsters. Tragically, they were all sent back via China to North Korea, where it is feared they were executed. Laos faced international criticism for sending them back.”

Application to the facts

[66] The appellant has defected from North Korea and would inevitably be viewed with suspicion on return. In the eyes of the regime he has committed treason, which attracts the death penalty. Even if he avoided that, he would be at risk of being tortured or being subjected to cruel, inhuman or degrading treatment. He clearly has a well-founded fear of being persecuted in North Korea on account of a negative political opinion being imputed to him.

South Korea

Country information

[67] As already noted, the appellant has been recognised in South Korea as a protected person under the Korean Refugees Protection and Settlement Act 1997. Article 1 of this Act sets out its purpose as follows:

“The purpose of this Act is to specify such matters relating to protection and support as are necessary to help North Korean residents defecting from the area north of the Military Demarcation Line and desiring protection from the Republic of Korea, to adapt themselves to, and settle down as quickly as possible in, all spheres of their life, namely, political, economic, social and cultural life.”

[68] This legislation provides for a range of support services including the establishment of settlement support facilities to provide care and settlement support (Article 10). Academic or other qualifications gained in North Korea or elsewhere may be granted equivalent recognition (Articles 13 and 14). Provision is made for social adaptation education (Article 15) and vocational training (Article 16), accommodation support (Article 20) and the payment of a settlement fund (Article 21).

[69] Employment-related support is provided for in Article 17 as follows:

“Article 17 (Arrangements for Employment)

1. After the person or persons under protection moves out from the resettlement support facilities and into their respective places of residence, in accordance to presidential decree, the Minister of Unification shall place those persons under employment protection for two years starting from their first day of employment.

2. The Minister of Unification can provide the employers of those recognized as protected persons under the regulations of condition one with employment support funds that is within 1/2 of the employee's salary under the presidential decree.

3. Employers shall recognize any previous occupational status and experience that the protected persons may have had while in North Korea and should be earnestly considered for his/her employment.

4. The Minister of Unification can support employers who have displayed outstanding achievement in the employment of protected persons by means of purchase preference and privileges over products under the selection by presidential decree.

5. The Minister of Unification, under the selection by presidential decree, can assist in the employment of protected persons.”

[70] Such support can be limited if the person does not accept any offer of employment brokered by the Minister of Unification, or if he or she arbitrarily resigns from the assigned workplace before completing the minimal requirement for work hours or is dismissed from the place of employment “for neglect of duty or other illicit conduct”.

[71] Despite this comprehensive state support, integration and resettlement proves difficult in many cases. The International Crisis Group Strangers at Home, North Koreans in the South (14 July 2011) reports in detail about a range of problems faced by North Korean defectors transitioning to a new way of life in South Korea. It observes at p11:

“North Korean defectors are sicker and poorer than their Southern brethren, with significantly worse histories of nutrition and medical care. They have distinctive accents, use different words and have little experience in the daily demands of life in a developed and open society. In the North, their education, employment, marriage, diet, and leisure were determined by the government, which assigned them to a class of people based on family history and political reliability. In the South, the array of choices presents them with endless difficult decisions that can be overwhelming.”

[72] The report, at pp11-12 contains details about the mental health issues faced by many defectors and refugees. Surveys also reveal multiple sources of trauma and anxiety, including events witnessed or experienced while in North Korea, such as witnessing public executions and hearing of the death of family members from starvation. The report continues:

“Defectors often face serious mental health problems, which in turn make employment and integration that much more difficult. The extent of the problem is unclear, but a number of studies suggest high rates of post-traumatic stress disorder (PTSD) and depression. One study found that nearly 30 per cent of defectors have PTSD. Another study showed that at least half of those tested show signs of PTSD and that this was the most important factor limiting adjustment to their new lives, followed by economic status and job status.”

[73] At p12, the International Crisis Group report notes that problems can persist for some time:

“Mental health problems persist for some time after resettlement. Studies in other countries suggest that refugees who have experienced particularly harsh regimes, such as that of the Khmer Rouge in Cambodia, suffer from PTSD for several years after reaching their host country. The director of a social welfare organisation in Seoul observed that defectors usually experience depression for two to three years

upon arriving in the South, because they feel helpless and unable to improve their lives. According to a survey conducted in 2001 and followed up three years later, men were more vulnerable to depression than women. This may be explained by a marked decline in social status among men, who often find it more difficult than women to obtain work in the South.”

[74] The International Crisis Group report notes that there are cultural and structural factors negatively impacting upon access to health services for treatment and suicide prevention generally:

“These problems are exacerbated because many defectors do not know how to get treatment even when it is available, while many others are reluctant because they lack awareness or underestimate the seriousness of their conditions. Culturally, Koreans tend to suppress and tolerate mental health problems rather than get treatment, which has resulted in insufficient facilities and systems for identifying and treating disorders. Despite South Korea’s high suicide rate, mental health screening is quite rare in the ROK [Republic of Korea/South Korea], although there are no statistics on it. Only 11.4 percent of those with mental health problems had psychological consultation with doctors or counsellors in 2006 compared to 27.8 per cent in the U.S. during 2001-2003.

...

Suicide is the fourth highest cause of death in the ROK, and it has become a serious social problem. While the suicide rate is decreasing in most Organisation for Economic Cooperation and Development (OECD) countries, the rate in South Korea has been rising rapidly. From 1990 to 2006, the average suicide rate of OECD countries decreased by 20.4 per cent; however, the rate increased by 172.2 per cent in the ROK. In 2009, the ROK suicide rate was the highest among OECD countries, 28.4 per 100,000 people. This is much higher than second-ranked Hungary (19.6) and third-ranked Japan (19.40). In 2009, suicides accounted for

15,413 of the country’s 246,942 total deaths (6.2 percent). Former President Roh

Moo-hyun committed suicide by jumping off a cliff in May 2009. South Korea’s top universities have also been shaken by suicides.”

[75] In addition, reference is made by Dr Parker in her report, to the WHO-AIMS Report on Mental Health System in Republic of Korea: A report of the assessment of the mental health system in Republic of Korea using the World Health Organization – Assessment Instrument for Mental Health Systems World Health Organisation (2006). The Executive Summary to that report notes that, while at that time the country had developed a long-term mental health plan to advance its national mental health system, and increased budgetary allocation for mental health services, “the Korean mental health system needs to make considerable improvements in order to become a more developed and effective system”. In particular:

“Even though Korea has a sufficient number of professional experts in the area of mental health, few mental health services are integrated in the country’s primary health care system. This relative lack of integration continues to separate mental health from the general health care system of the country, and consequently, contributes to the current social stigma against mental illness.”

[76] As regards employment, the position of many North Korean defectors is similarly precarious. The International Crisis Group report notes, at pp14-15:

“Being thrown into South Korea’s dynamic and highly competitive society is one of the greatest challenges for defectors. In January 2011, only 50 per cent of defectors were employed (10,248 of 20,539), and most of these were in unskilled manual labour jobs (7,901, or 77 per cent of those employed). Only 439 defectors (4 per cent) were working in skilled jobs, and 381 were working in administrative positions.

There has been no real progress over the years. For example, a survey in 2006 showed that 45 per cent of defectors were unemployed, and 30 per cent worked half time. Only 12 per cent were self-employed or worked full-time. Another survey in 2006 showed that about two thirds described themselves as unemployed. In the same year, 61.9 per cent of South Koreans aged fifteen or over were “economically active” and 59.7 per cent were employed, so only a small fraction of those seeking jobs were unemployed.

Many defectors become discouraged and simply give up looking for work. Those who do find work earn on average ₩1.27 million (about $1,170) per month, which is just above the minimum subsistence level for a family of three.

These levels of unemployment persist despite subsidies for employers who hire defectors;...”

[77] At pp17-20, the International Crisis Group report notes the various forms of discrimination encountered by North Korean defectors in South Korea. Defectors are, the report observes, “frequently victims of an array of prejudices about Northerners that developed during the decades when both sides demonised each other”. Problems are compounded by differences in language, and negative media and societal stereotyping.

[78] The country information before the Tribunal further confirms these problems and provides additional context for the problems faced by some North Korean defectors in the south. The policy briefing by Sung Ji-young and Go Myong-Hyun “Resettling in South Korea: Challenges for Young North Korean Refugees” Centre for Public Opinion and Qualitative Research, Asian Institute for Policy Studies (8 August 2014) at www.asaninst.org argues that South Korea can no longer be considered an ethnically homogonous country given the continuous inflow of migrant workers, foreign students and business people. Despite this, Sung and Go nevertheless argue that North Korean refugees have a “unique status” in South Korea, as evidenced by the significant levels of state report. Critically, however, there is no centralised agency that handles the assistance for North Korean refugees, and responsibility is scattered across a number of ministries and local government departments. Sung and Go argue:

“There is no doubt that current assistance programmes for North Korean refugees are generous, at least on paper, and cover almost all aspects of the resettlement process, ranging from housing and initial job placement to extra academic tutoring.

But many are overlapping programmes by different ministries and agencies that are not well promoted to the target population. The quantity is apparently no substitute for quality, however, as dozens of assistance programmes are as a whole considered by experts to fall short of meeting the needs of refugees. Despite the plethora of assistance programmes, for most of them the duration of assistance is capped at a maximum of five years, the underlying assumption being that refugees would have adapted to South Korean society by then. The current assistance scheme can be characterised in a nut shell as generous assistance for the short term, based on the optimistic expectation of trouble free adaptation.”

[79] Sung and Go then proceed to analyse a number of factors, including gaps in physical health between North and South Korean boys and girls. Sung and Go note that North Koreans commonly have experiences of acute stress and trauma and cites a 2012 study indicating that two-thirds of the 301 North Korean refugees surveyed showed PTSD symptoms such as insomnia and feelings of helplessness. This made it difficult for those with the symptoms to hold steady jobs or perform well. North Korean refugee children experienced problems at school and were dropping out of education. Commenting on labour market and workforce participation, Sung and Go observe that young North Korean refugees often experience cultural conflict in workplaces in the form of language barriers and difficulties in interpersonal communication.

[80] As regards social prejudice and stereotypes, Sung and Go cite studies evidencing a deteriorating trend, with a declining proportion of the South Korean population expressing “some degree of closeness” towards the North Korean people. There are intergenerational differences, with South Koreans in their 20s as a whole having the most negative attitudes towards North Korean refugees in contrast to the cohort aged 60 or older. Sung and Go argue:

“This generational difference is likely due to the fact that the younger generation of South Koreans no longer consider North Koreans as part of the same nation, with the two Koreas having separated for more than half a century. As the result, mean North Korean refugees experience mistrust, unfair treatment, ostracism and discrimination even outright hostility, creating serious challenges to the prospect of successful resettlement....”

[81] Sung and Go conclude that, even after taking into account the inevitable cultural misunderstandings when dealing with recently arrived North Korean refugees, South Koreans’ strong prejudice and stereotyping of North Korea and its people is widespread and well-entrenched. Sung and Go then outline various policy concerns and recommendations. A particular criticism Sung and Go make is that current policy is too focused on short-term economic help and does not adequately deal with the social and psychological factors that are the “actual culprits behind the difficulties that refugees face”.

Application to the facts

[82] The appellant’s predicament is typical of the integration of many North Korean defectors to South Korea. In accordance with the provisions of the Korean Refugees Protection and Settlement Act 1997, he has been the beneficiary of widespread assistance by the South Korean state in the form of subsidised education, housing and general assistance with his resettlement. He has enjoyed access to the courts and has obtained a tertiary qualification. While the adjustment process from life in a totalitarian state to life in a democratic country is bound to be inherently difficult, the appellant’s successful resettlement has been negatively affected by the discrimination he has encountered in important facets of his life such as personal relationships and work. Based on his past experiences and the country information cited above, should the appellant return to South Korea there is every possibility he would encounter the same social isolation and discrimination he encountered in the past.

[83] However, the risk of the appellant being subjected to further assaults is remote and speculative. There has only been the single isolated incident in the past. There is no evidence before the Tribunal to establish that that it would occur again in the future. While the appellant’s mother still lives in South Korea and he is able to draw some comfort from interaction with her, he has experienced a growing sense of alienation and isolation, particularly following the assault he suffered and the rejection of him by the family of the South Korean woman he wished to marry. This trend is likely to continue into the future.

[84] The appellant believes that he has been unable to access full-time employment or employment commensurate with his recent tertiary qualification simply because of prejudice. It is, if course, impossible to know the extent to which anti-North Korean prejudice has played a part. The actual reasons may in fact have nothing to do with his North Korean origins and reflect nothing more than there being more suitably qualified candidates for the positions he applied for in what has been described in the country information as a “highly competitive society”. Nevertheless, having regard to the country information regarding the prevalence of negative attitudes towards North Koreans, and the persistent existence of disproportionately higher rates of unemployment compared to economically active South Koreans, the Tribunal accepts that discrimination has at least played some part in his prior inability to find settled or skilled employment.

[85] As regards this occurring in the future, the Tribunal notes that, while

Article 17 of the Korean Refugees Protection and Settlement Act 1997 provides for

employment support and incentivises employers to hire North Korean defectors by providing for the payment of up to one-half of the person’s salary, this support is capped for a maximum period of two years starting from their first day of employment following their moving out of the resettlement centre. In the appellant’s case, this two-year period lapsed in the mid-2000s. He will be without such state support in the employment sector on return and can be expected to encounter continuing discrimination in finding employment in both his chosen profession and in his trade. The Tribunal accepts that this amounts to a breach of his rights under Articles 2(2) and 6 of the ICESCR and that, because of the nature of the discrimination, the state is simply unable to do anything about it.

[86] However, as stressed in DS (Iran), establishing a real risk of future breaches of the right to work does not mean the appellant is at risk of being persecuted; there must be some impact on him arising from the breach which can be properly described as ‘serious harm’. Financial hardship alone will not suffice.

[87] There is no evidence before the Tribunal to establish that he will be wholly shut out of the labour market in general, or proscribed from public sector employment. The appellant has obtained work on a casual basis in the past and there is no reason to think that he will be unable to do so in the future. Together with the support provided by the South Korean state, this has seen him enjoy an adequate standard of living. This will continue. There is no reason to think that he faces a real chance of destitution, nor severe financial hardship. He received a social security benefit while a student and there is nothing to suggest he would be denied any such benefit to which he is entitled on account of his North Korean origins.

[88] Nevertheless, the appellant has plainly placed great store in completing a university degree in order to find meaningful work for himself. For this particular appellant, tertiary study has become the ultimate means by which he would find, through related employment, an antidote to the assaults on his dignity arising from his experiences in North Korea, and the discrimination and ostracism encountered in his private and work life following his defection to South Korea. He committed himself to a successfully completing a lengthy course of study over a number of years, in order that he may find security, peace of mind and a sense of self-worth. It is clear that merely being required to perform casual manual work in lieu of finding employment in a chosen professional field, in and of itself, does not typically constitute serious harm. Nevertheless, the appellant’s particular background provides a more serious context to any discrimination that he may

encounter in finding work in his chosen professional field, than would otherwise exist.

[89] In DS (Iran) (above) at [161], the Tribunal observed that not all psychological or emotional impacts associated with being the victim of discrimination would qualify as serious harm; “rather, the extent to which this may be so is highly context dependent”. While exposure to general societal discrimination, ostracism and occasional workplace discrimination would also not typically amount to serious harm, on the particular facts of this case, the Tribunal is satisfied that a real chance of serious harm exists. Having regard to the psychiatric report of Dr Parker, the Tribunal finds that this appellant, due to his existing precarious state of mental health, is particularly vulnerable to suffering serious psychological harm in respect of any future incidents of discrimination in accessing employment, both outside his chosen profession and more generally, encountered while in the workplace, or casual discrimination encountered when going about his daily life, particularly when aggregated over a medium-term horizon of a year or two. Such harm would, in the Tribunal’s view, reach a severity amounting to degrading treatment under Article 7 of the ICCPR. This constitutes sufficiently serious harm for the purposes of the Refugee Convention.

[90] For these reasons, the Tribunal finds that the particular vulnerabilities of this appellant mean that he will suffer a sustained and systemic violation of his internationally recognised human rights amounting to degrading treatment. This is demonstrative of a failure of state protection in that, despite evidence of a reasonable willingness to protect, the state is simply unable to do so. This particular appellant’s predicament in South Korea constitutes a well-founded fear of being persecuted.

Is there a Convention reason for the persecution?

[91] Counsel’s submissions on nexus to a Convention ground are accepted. The appellant predicament is being contributed to by his North Korean identity, an immutable characteristic defining North Koreans as a particular social group in South Korea as well as a ‘nationality’ for the purposes of the Refugee Convention.

Conclusion on Claim to Refugee Status

[92] For these reasons, the Tribunal is satisfied that the appellant is entitled to be recognised as a refugee under section 129 of the Act.

The Convention Against Torture

[93] 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.”

[94] 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.”

[95] Because the appellant has been recognised as a refugee, he is entitled to the protection of New Zealand from refoulement to North or South Korea. The recognition of the appellant as a refugee means that he cannot be deported from New Zealand to either country; see Article 33 of the Refugee Convention and sections 129(2) and 164 of the Act. The exception to section 129, which is set out in section 164(3) of the Act, does not apply. Therefore, there are no substantial grounds for believing the appellant would be in danger of being subjected to torture in either North or South Korea.

The ICCPR

[96] 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.”

[97] Again, because the appellant is recognised as a refugee he is entitled to the protection of New Zealand from refoulement to North or South Korea. For the reasons already given in relation to the claim under section 130 of the Act, there is no prospect of the appellant being deported from this country. Therefore, there

are no substantial grounds for believing that he is in danger of being subjected to arbitrary deprivation of life or to cruel, inhuman or degrading treatment or punishment in North or South Korea. Accordingly, the appellant is not a person who requires recognition as a protected person under the ICCPR.

CONCLUSION

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

(a) is a refugee within the meaning of the Refugee Convention;

(b) is not a protected person within the meaning of the Convention

Against Torture;

(c) is not a protected person within the meaning of the Covenant on Civil and Political Rights.

[99] The appeal is allowed.

“B L Burson B L Burson Member

Certified to be the Research

Copy released for publication.

B L Burson

Member