1904619 (Refugee)

[2022] AATA 1972

1904619 (Refugee) [2022] AATA 1972 (3 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904619

COUNTRY OF REFERENCE:                   India

MEMBER:Genevieve Hamilton

DATE:3 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 03 May 2022 at 1:46pm

CATCHWORDS
REFUGEE – protection visa – India – political opinion – supporter of BJP – not a party member or donor – canvassing for votes and handing out flyers – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), r 2.08; Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

BACKGROOUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 February 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).

2. The first named applicant (“the applicant”) arrived in Australia [in] July 2015 on a Visitor (subclass FA-600) multiple entry visa, in effect until 6 October 2015.  On 6 October 2015, the applicant was granted a further Visitor (subclass FA-600) visa, valid until 20 April 2016.  On 20 April 2016, he was granted a further Visitor (subclass FA-600) visa, valid until 21 July 2016.  He applied for a Protection Visa (subclass XA-866) on 16 July 2016.

3. The second-named applicant is the applicant’s wife.  She arrived in Australia with the applicant [in] July 2015 on a Visitor (subclass FA-600) multiple entry visa, in effect until 19 June 2016.  She departed Australia for India [in] September 2015 and returned [in] March 2016 on the same. On 17 June 2016, she applied for a further Visitor (subclass FA-600).  She was included as a dependent applicant on the applicant’s Protection Visa Application.  Her Visitor visa application was refused on 16 December 2016.

4. The third named applicant is their child, he was born onshore on [date], and added to the applicant’s Protection Visa Application (PVA) in accordance with Regulation 2.08 Migration Regulations 1994.

5. The delegate refused to grant the visas on 11 February 2019.  The primary applicant provided the Tribunal with a copy of the delegate’s decision. 

   CRITERIA FOR A PROTECTION VISA

6. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

7. The criteria for a protection visa are relevantly set out in s.36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c).  Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on ‘complementary protection’ grounds, or be a member of the same family unit as such a person.

   Refugee

8. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1).  

9. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

10. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

11. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

12. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). 

13. A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

14. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

15. If a person is found not to meet the refugee criterion in s.36(2)(a), they may still be a person to whom the Minister is satisfied Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm: s 36(2)(aa).  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

    CLAIMS AND EVIDENCE

16. In his protection visa application the first-named applicant (“the applicant”) said he was born in India on [date] in Bangalore, Karnataka, and is an Indian citizen.  Both his parents are Indian citizens.  He has no other citizenship and states that he has no right to enter and reside in any third country.  He can speak read and write English.  His religion is Hindu, his occupation business.  He married in India [in] March 4014.  His parents and brother live in India.  He is in telephone contact with them.  He arrived in Australia [in] July 2015, having departed Bangalore the day before, travelling legally on his Indian passport issued [in] 2014.  He arrived as a visitor.  He is in possession of his previous passport.  On 22 May 2015 the applicant was refused a visitor visa because the Department was not satisfied he was a genuine temporary entrant.  He said that he was interviewed in connection with his visa application and gave ”visit Australia” as his reason for wanting to come to Australia.  He has also been refused a visa to the USA: [in] March 2015.  He has not left Australia since first arrival.  He is the owner of a [specified] business located at his residential address in Bangalore.  The applicant attached a travel history which includes various overseas trips prior to coming to Australia. 

17. The included applicants are the applicant’s wife and child.  They have the same Indian nationality.  The applicant’s wife stated that she last arrived in Australia [in] March 2016, having left Bangalore the day before, travelling on her Indian passport issued [in] 2014.  She came as a visitor.  She was previously refused a visitor visa on 22 May 2015 (non-genuine visitor).  She was currently on a bridging visa.  She completed primary education and has no employment history and has no English language ability. 

18. In a statement in support of his application the applicant said he became an active BJP supporter in 2013 because he liked that it was not corrupt, unlike Congress Party.  His support was mainly in the form of campaigning for votes at the 2013 State Election.  Although BJP came to power in India, Congress still rules in the state of Karnataka.  He didn’t seek protection in the countries he visited because the difficulties caused by Congress supporters and their thugs was minimal.  In July 2015 he came to Australia for a holiday with his wife, toured in Australia, and extended his visitor visa for further touring inter-state.  In July 2016 his brother called him to warn him not to return to India because the Congress Party supporters and thugs had asked about his whereabouts and ordered his brother to tell them when the applicant returns.  His brother asked them why.  They said it was because the applicant was a past and present supporter of the BJP and should not support the BJP in the future.  The applicant said he would provide more information during his interview. 

19. The applicant was interviewed by a case officer on 18 January 2019.  He said that he and his wife, and his parents, all came together to Australia.  His wife had to go back to India because his mother in law was sick, she later returned to Australia.  His parents left when his grandmother died back in India.  The applicant explained why he supported BJP rather than Congress.  He said he became an active supporter in 2014 (not 2013), by canvassing for support, and through polling booth support.  He said he was the leader of 50-100 families and he tells people how to support BJP.  His family were well known supporters of BJP.  His brother also supported.  Asked whether he had a formal role or position the applicant said not, and confirmed that he was just a supporter?  He said he was not a Member of the Party.  After 2014 he was just waiting for the next elections and taking care of his business.  He didn’t do anything for the Party.  Asked whether he was well-known in his community as a BJP supporter the applicant said he was among relatives and friends, not the broader community.  People in his village know because of his canvassing activities.  In 2018 he called his family and told them we all must support the BJP, and he would continue to do so.  There followed a discussion of the threat conveyed through his brother in July 2016, and the applicant said the Congress people also came before that. 

20. After the interview the applicant was invited to provide further evidence of his involvement with the BJP.  The applicant wrote back attaching three copies of political posters.  In a later explanation he wrote that:

    These Images are used to Advertise BJP campaigns in our Local Area and Local Leaders. We attach these images in Billboards and in Streets.  These images were sent by my brother from India as I couldn’t find my old images which I used for Campaign. My brother went to the local BJP Party office and asked them to look for the Old images and my brother sent them to me on 24th Jan 2019.  These Images are created by Local BJP leaders for Occasions such as Birthday’s of BJP Leaders, Festivals & BJP Party Meetings.  These images can be seen in Streets, BJP Party office in [District 1], Bangalore & also distributed as Pamphlets. 

21. The images include a photo of someone who could be taken to resemble the applicant, and were accompanied by rough translations and purport to identify that person as [name] (similar to the applicant’s name), “the BJP Party Leader for [District 1]”. 

22. The applicant also supplied several links to [social media] videos of local televised news.  Only one of them still contained video footage.  It is headlined ”[specified]”.  It reports that a Congress legislator poured petrol inside a BBMP office in Hormavu and threatened to put the entire building on fire over a land dispute. ([details redacted]). 

23. A hearing of the Tribunal was held on 13 August 2021.  The applicant did not request an interpreter so the hearing was conducted in English.  The included applicants did not participate in the hearing. 

24. The applicant said he comes from [named] suburb [District 1] in Bangalore, the population of [the suburb] is 50-60000 approximately.  He needs a protection visa because he was a BJP supporter canvassing for them during elections, with his family and his community.  Whenever he tried to do that Congress leaders warned him not to.  Congress leaders and supporters came to his home and were searching for him to warn him.  His brother advised him to stay away from there. 

25. He first came to support BJP in 2008-9 although he was not active at all.  In 2014 he became active in the [District 1] constituency for [Mr A] the BJP candidate.  The constituency is about 500,000 people.  [Mr A] ran his own campaign, and was also the local Party Leader.   People go to the local office and pick up material to distribute everywhere.  The applicant was able to say where the local BJP office was but did not know where the main Bangalore office was.  Congress won the 2013 State election, BJP won nationally in 2018, but Congress won the seat of [District 1].  The District MLA later switched to BJP.   

26. The Tribunal asked the applicant to clarify whether he was active in 2013 elections. The applicant said just “normal canvassing”.  The Tribunal asked whether the applicant was a Member of the BJP and he said he was not.  He travels too much; to be a Member you have to attend meetings.  He said he did not support the Party financially.  

27. The Tribunal put to the applicant that political violence was unlawful in India and there were police forces and judicial systems to enforce the law.  The applicant said his opponents could get him when he is alone.  The police are corrupted by Congress. 

28. The Tribunal was unable to open two of the videos referred to at paragraph 22 and wrote to the applicant inviting him to provide any further country information in support of his claims.  In reply the applicant provided a further [social media] link ([specified]).

    FINDINGS AND REASONS

29. Based on the information in their applications, the Tribunal finds that the applicants are Indian nationals.  They have sought protection on the basis of the applicant’s claimed fear of violence due to his political opinion as a supporter of BJP. 

30. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

31. The DFAT Country Information Report India 10 December 2020 contains the following relevant information

    3.90 There are few publicly available statistics on election incidents. Reports of violence around polling stations do occur during electoral periods. For example, in the 2019 general election campaign, clashes between party supporters, protests and other violent incidents were reported in 11 (of then-29) states. Seven deaths were recorded of voters, party workers and elections officials, including by security forces, with multiple others injured. The Electoral Commission of India (ECI) ordered repolling in around 270 (of 1 million) polling stations due to allegations the booths had been 'captured' and voters intimidated by supporters of one or another party. The ECI also banned campaigning in West Bengal a day early after a major clash between the supporters of the BJP and the governing All India Trinamool Congress.

    3.91 DFAT assesses leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, given the scale of the Indian election process, elections are conducted peacefully. DFAT assesses people who publicly express views critical of the government face a moderate risk of official discrimination. This may include arrest, harassment and prosecution.

32. The Delegate’s decision cited country information which did not reveal any recent instances of targeting or violence perpetrated by supporters of Congress against supporters of the BJP in the state of Karnataka.  'IND: 20190118141248 – Indian National Congress supporters – violence – BJP – Karnataka', Country of Origin Information Services Section (COISS), 25 January 2019, p.2.  Only two “scuffles” in 2018 involving individuals connected to Congress and the BJP were identified.  Furthermore, these incidents appeared to evolve from political protests rather than targeted acts of violence, and only one of the incidents resulted in injury. ‘Congress, BJP workers clash at BSY’s house’, Times of India, 21 September 2018, 20190124103858; ‘BJP corporator, Congress councillor’s son injured in clashes’, Times of India, 13 May 2018.  There were mild injuries following local council elections: ‘10 injured in acid attack on Congress victory rally in Karnataka’, Hindustan Times, 3 September 2018.  The applicant provided two video news reports, one appears to relate to a land dispute and one does refer to a politically motivated attack on BJP workers. 

33. Based on his evidence at the interview the Tribunal accepts that the applicant approves of and votes for the BJP.  Based on his own evidence the Tribunal finds that the applicant is not a member of the BJP nor does he support them financially.  The Tribunal gives no weight to the images referred to at paragraphs 20 and 21 above.  At the hearing the Tribunal put to the applicant that the images appeared to be making a claim that he is a KR Party Leader whereas this could not be possible as he is not a member of the Party.  The applicant agreed that this was the case and said that the posters do not include his picture and do not refer to him.  As such they do not support his case in any way. 

34. The applicant displayed some familiarity with the political campaigning process and the combative atmosphere during polling.  His evidence was unclear as to the extent of his support for the BJP, namely whether he was involved in both the 2013 and 2014 elections.  In his written claims he said he was involved in the 2013 State Election.  At interview he said he decided to become active in 2014, and that 2014 was the first time he helped during the election.  In the hearing he said he became active in 2014 but also participated in “normal canvassing” during the 2013 election.  The Tribunal finds this evidence unclear rather than contradictory, and accepts that he was involved in active support for the BJP in terms of canvassing for votes and handing out flyers etc.

35. The applicant claimed to have been the subject of a number of direct threats between the election 2013-2014 election cycle, and 2016, and more afterwards.  Yet he said in his application he did not seek protection in other countries he travelled to because he was only having minimal difficulties.  At the interview, he said he did not seek protection in any other country because at the time he did not have any problems or threats.  “Everything was cool and good” and he had minimal difficulties.  The Congress workers didn’t like it though, they said “you will lose”.  But he did not face harm.  Only minimal difficulties, in that things were said, small threats or warnings.  They would say “why do you support BJP and not Congress”, a bit rudely, and the applicant did not like it.  But when asked why his opponents came to his house in July 2016, when there was no election going on, the applicant said they also came 2 or 3 times before, but in July 2016 they were a bit “stronger””.  Asked later in the interview how many times they came, he said it was 3-4 times. 

36. At the hearing the Tribunal asked the applicant whether he had any problems resulting from his political activity while he was still in India.  The applicant said there were just small arguments.  In 2016 some Congress leaders came to the house and warned his brother that they were searching for him.  Asked why they looked for him in 2016 the applicant said before that he had got married and been away a lot.  They also came twice more after 2016, around the State Election in 2018 and the General Election in 2019.  The Tribunal sought to understand why the Congress leaders came in 2016.  The applicant said they do it all the time.  Asked who they were, the applicant said “we don’t know their names”.  The Tribunal asked the applicant why the Congress leaders were targeting him in particular.  The applicant said it was because he had 40-50 people following him to help canvass for the BJP.  And on polling day hand out flyers and wear the BJP shirts. 

1. The Tribunal asked the applicant whether he feared harm prior 2016.  The applicant confirmed he did not, that is why he didn’t apply for protection earlier.  He said there are still threats and warnings against him and people are looking for him and might injure or kill him.  His family are scared and worried and that is why he has been told to stay away. 

2. At the hearing the Tribunal put to the applicant that his profile was not sufficient to result in people coming to his house to warn him off supporting BJP.  He was not a member of or donor to the BJP and the country information indicated that political violence in Bangalore was isolated despite the large population. 

3. The Tribunal is not satisfied that the applicant was ever directly threatened in relation to his involvement with the BJP.  The preponderance of his evidence was that he had no fear of harm when he came to Australia and had experienced only minimal difficulties in the sense of verbal arguments at election time.  Hence he did not apply for protection on arrival in Australia.  Moreover, the country information indicates that political and election related violence in his state and city is isolated.  The Tribunal does not accept that Congress supporters/leaders came to his home in 2016 and issued a warning through his brother, given his low profile and that there were no elections going on at the time.  The Tribunal does not accept that similar incidents occurred in 2018 and 2019, considering he was in Australia at the time, and that the country information does not support his claims.  The Tribunal does not accept that the applicant was a leader of 40 to 50 party activists, or that he can influence the votes of 50 to 60 families, as this claim is not readily plausible considering he is not even a member of the Party. 

4. Based on the country information the Tribunal is not satisfied that the applicant’s political opinion or activity attends a real chance that he will be seriously harmed in the reasonably foreseeable future. 

5. Having considered the evidence as a whole, the Tribunal does not accept that the applicant faces a real chance of serious harm for reason of his political opinion.  He therefore does not have a well-founded fear of persecution as required by s 5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s 5H(1). 

6. Having concluded that the applicant does not meet the refugee criterion, the Tribunal has considered whether the applicant meets the complementary protection criterion.  The Tribunal has not accepted the factual basis of the applicant’s claims.  He confirmed at the hearing that there were no other reasons he feared harm in India.  Accordingly, the Tribunal is not satisfied there are substantial grounds to believe that there is real risk that he will suffer significant harm on return to India.

7. The Tribunal considered whether the included applicants might be harmed in association with the applicant’s claims.  No protection claims were made specifically in relation to the included applicants.  The applicant confirmed at the hearing that his wife and child have no claims of their own.  As the Tribunal has not accepted that the applicant is a refugee or a person to whom Australia owes complementary protection obligations, the Tribunal further finds that neither of the included applicants is a refugee or person to whom Australia owes complementary protection obligations.

   CONCLUSION

8. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations.  Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.  It follows that they are not a member of the same family unit as a person in respect of whom Australia has protection obligations and are therefore unable to satisfy the criterion set out in s 36(2)(b) or (c).  They therefore cannot be granted protection visas.

   DECISION

9. The Tribunal affirms the decision not to grant the applicants protection visas.

   Genevieve Hamilton
   Member