1904619 (Refugee)

The applicant, an Indian citizen, sought a protection visa for himself and his wife and child, claiming he was a supporter of the Bharatiya Janata Party (BJP) in India. He alleged that he had engaged in campaigning for the BJP during the 2013 State Election and that, in July 2016, his brother warned him not to return to India due to inquiries from Congress Party supporters and thugs who stated he was a past and present supporter of the BJP and should cease his support. The Tribunal was asked to determine whether the applicants met the criteria for a protection visa, specifically whether they were persons in respect of whom Australia had protection obligations under section 36(2)(a) or (aa) of the Migration Act 1958 (Cth).

The court considered whether the applicant's alleged support for the BJP, which did not extend to party membership or donations, constituted a characteristic that would place him at risk of significant harm if returned to India. The court noted that "real risk" of significant harm, defined under section 36(2A) to include arbitrary deprivation of life, torture, or cruel, inhuman, or degrading treatment or punishment, has the same meaning as "real chance." The Tribunal was not satisfied that the applicant's actions, such as canvassing for votes and handing out flyers, were sufficient to establish a real risk of significant harm from Congress Party supporters and thugs, particularly as the applicant had not sought protection in other countries he had visited and his parents and brother remained in India.

Ultimately, the Tribunal affirmed the decision not to grant the applicants protection visas, finding that they did not satisfy the criteria under section 36(2)(a) or (aa) of the Migration Act 1958 (Cth). Consequently, as they did not meet the primary criteria, they also failed to satisfy the family unit criteria under section 36(2)(b) or (c).