2100386 (Refugee)

2100386 (Refugee) [2022] AATA 2615 (30 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2100386
COUNTRY OF REFERENCE:                   India
MEMBER:Genevieve Hamilton
DATE:30 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 June 2022 at 3:57pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – prominent local campaigner for the Bharatiya Janta Party (BJP) – part of claims are identical to claims made by another applicant – applicant was not politically active as claimed – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
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
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 27 July 2017. The delegate refused to grant the visas on 24 December 2020.
CRITERIA FOR A PROTECTION VISA
Under s 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.
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). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s.36(2)(a)), or on ‘complementary protection’ grounds (s.36(2)(aa)), or be a member of the same family unit as such a person.
Refugee
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).
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.
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.
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)).
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).
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).
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
If a person is found not to meet the refugee criterion, they may still be a person to whom 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(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.
Mandatory considerations
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The applicant said he was born in Rampur, Kheda, Gujarat, India on [date] and is an Indian citizen. His occupation is business. He married on [date] January 2015 in Kheda. His parents and his son are Indian citizens living in India and he is in contact with them on the phone. He left India on [date] May 2017 arriving in Australia the day after, travelling on his Indian passport issued [in] 2016, with a visitor visa issued on 13 May 2017. His previous passport expired. He has also been to the EU (in August 2016). In India he lived in Kheda [Gujarat]. His business was located in [Village 1], he was the owner of it from January 2005 until January 2016. He did primary school in Rampur, and completed High School year 12 in [Village 1] in April [year].
The applicant’s wife was born in Nadiad, Kheda, Gujarat, India on [date] and is an Indian citizen. Her occupation was [Occupation 1]. Her parents and son are Indian citizens living in India and she is in contact with them by phone. She left India on [date] May 2017 arriving in Australia the day after, travelling on an Indian passport with a visitor visa issued on 13 May 2017. She has also been to the EU (in August 2016). She has lived in Kheda ([Village 1]) since marriage. She worked as a self employed [Occupation 1] from Jan 2012 until December 2016. She does not have claims of her own for protection.
The applicant’s claims read as follows:
I am an Indian national arrived in Australia and seeking protection so that I do
not have to go back to India where I was threatened to kill by the members of
my previous political party. I was a member BJP but left the party after I
realised that most of the party leaders were involved in corruption and joined
NCP (Nationalist Congress Party).
Being a businessman I had always desired to be significant presence in my
local and business community. The ideology of my party is strengthening
the force of nationalism with an emphasis on the egalitarian and secular
ethos of the Indian Republic and combating fundamentalism and social
transformation and economic emancipation of the Indian society, which
comprises of the schedule castes, schedule tribes, backward class and
religious minorities such as Sikhs, Muslims, Christians, Parsis and Buddhists.
The Bharatiya Janta Party (BJP) currently in power in both Centre
(Government of India) and in my state, where I was living in India. It is a
right-wing party with close ideological and organisational links to the Hindunationalist Rashtriya Swayamsevak Sangh (RSS). The situation aggravated
when I refused to join the BJP. They started threatening me with explicit threat
of harm. I tried to repeatedly make a complaint with local Police Station
(responsible for our area), but in vain, the police officers neither took my
complaint, nor offered any protection and instead asked me to comply with the
requests of BJP should I want to stay peacefully. The officer bearers of these
people are very well connected and highly influential with the governmental
dispensation of BJP and that they can do anything and can go to any
extent, should they decide. During the recent municipal election some
business were asked to pay five lacks Rupees depending on their business
activities and small businessmen paid thousands of rupees. I raised the
illegal party donation issue with local BJP leader on behalf of businessmen. I
informed them what was going on in the name of party donation, but
surprisingly they took it very lightly and told me that they are going to make
inquiry about it because they did not believe that BJP members involved in
any illegal activities. After few months I tried to contact them but they refused
to discuss about it. In recent Panchayat election I was in advisory
committee for the NCP party candidates in my area and I had significant
contribution for the NCP party candidates. I campaigned against BJP candidate
and asked other to vote for the NCP party. The BJP suffered humiliating
defeat in Panchayat election. It comes less than year before the assembly
elections due near the end of this year. They became more aggressive
towards us and threatened to kill me. They asked local transport business
owners to pay more money if we want continue our business.
After failing to stop their illegal activities we organised a rally taken out from
one side of the area to another side attended by most of the farmers including
people from different walk of life to condemn BJP's activities. We carried out
placards and banners with slogans against local BJP leaders and their
corruptions. The verbal abuse continued for a while and mobs lead by activists came to my house and threatened me with dire consequences to me, my family. They
ransacked my business and house and threatened my family members. I
was terrified and could not sleep for many days. I got very worried about my
family members and decided to leave India immediately. They threatened to kill my family members.
At his interview with the Delegate the applicant said that he joined the BJP in about 2013 or 2014 and used to be involved in rallying and campaigning but they were corrupt so he left. He did not remember exactly when he left, it was after about three years. They threatened him because he left. The police did nothing. He joined Congress which won the town elections in 2016. There were more threats after this, he was targeted because he was in the forefront of the campaign and prominent in the community. He organised all the rallies.
A hearing of the Tribunal was conducted on 22 February 2022 by teleconference with the agreement of the applicant, due to ongoing Covid-related health restrictions. The applicant said he was from Rampur, Gurarat, his occupation is [products distributor]. His child is India with his wife’s family. He came to Australia for protection because BJP members threatened him and his family. He was speaking out against the BJP, he had left the BJP and joined the NCP, and they were threatening and torturing him and said they would kill him. He joined the BJP in 2013 or 2014. He was not actually a member. He was active in the election campaign, he was the main worker in the team. Asked what team he was referring to, the applicant said the team the did the main work at the elections. They would go and make people understand to vote for the BJP. Asked where he went to do this the applicant said around his village and neighboring villages in [Village 2]. Asked how many people in the team the applicant said he was not sure, but there were lots. Asked if he could estimate, the applicant said 100-150. The Tribunal expressed reservations that the applicant would be the main worker in a team that size without being a member of the BJP. The applicant said he understood “member” to mean candidate.
The Tribunal asked if the applicant ever donated to the party and he said no. People used to come and ask the small businesses for money but he refused. Asked why he did not donate to the Party the applicant said because he had already left it, he left it because they of forced donations and corruption. At first they were good in providing services such as roads, electricity and water. But they didn’t fulfill their promise. Then a local Congress Member was preselected for election and people thought he would represent them better. This was for the [Village 2] Panchayat in 2016. Asked what was involved in being on an advisory committee the applicant said it meant advising the candidates and the voters. Asked what they were being advised about, the applicant said they were told to do this particular work so we can tell the villagers to vote for you, and advising the villagers to vote for Congress. Asked how this was done, the applicant said they would go to places and have meetings, and decide what needs to be done. The Tribunal observed that the applicant’s profile did not seem prominent enough to attract the level of hostility from the BJP that he claimed. The applicant said he was making people understand.
During the election campaign the BJP came to his house while he was away. They said stop your work, and threatened to harm him. They used to come to the shop and the house. They passed threats through the villagers. He reported it to the police but they are under BJP’s control. The Tribunal asked the applicant if anything happened other than verbal threats. The applicant said not. The Tribunal asked if anything was ever damaged. The applicant said not. The Tribunal referred the applicant to his written claim about the house being ransacked. The applicant said there was a little damage to his shop. The applicant named one of the people who threatened him, the BJP district leader, but was unable to name any others. The Tribunal observed that it would have expected the applicant would have information about the identities of people making such threats. The applicant said the District leader would send whoever was working for him.
The Tribunal put to the applicant that the country information indicated that generally elections are conducted peacefully in India despite some instances of violence around polling stations. The applicant said if he goes back to India he doesn’t earn enough to support his family.
The Tribunal asked the applicant why his son remained in India, if his family members were threatened as per his written claims. The applicant said it was only himself that they wanted to stop.
The Tribunal put to the applicant that his claims were very similar to those of another applicant. The applicant declined to comment.
On 24 February 2022 The Tribunal wrote to the applicant in accordance with s 424 inviting him to comment on adverse information. The letter read in part as follows:
“The particulars of the information are that the wording of your claims is partly identical
to claims made by another applicant, who lodged a protection visa application before you did… The other applicant’s statement of claims reads in part as follows:
… I had always desired to be significant presence in my local and business
community...
During the election some … were asked to pay … lacks of Rupees depending
on their … activities and small … paid thousands of rupees … I raised the illegal
party donation issue with local BJP leader on behalf of …. I informed them what
was going on in the name of party donation, but surprisingly they took it very
lightly and told me that they are going to make inquiry about it because they did
not believe that BJP members involved in any illegal activities. After few months I tried to contact them but they refused to discuss about it. … election I was in
advisory committee for the … party candidate in my area and … I had
significant contribution for the … party candidate. I campaigned against
BJP candidate and asked other … to vote for the … party.
After failing to stop their illegal activities we organised a rally taken out from one
side of the area to another side attended by most of the farmers including
people from different walk of life to condemn BJP's activities. We carried
out placards and banners with slogans against local BJP leaders and their
corruptions.
BJP suffered humiliating defeat in recent Panchayat election. It comes less
than year before the assembly elections due near the end of this year. They
became more aggressive towards us and threatened to kill me. They asked local
transport business owners to pay more money if we want continue our
business. … came to my house and threatened me. They ransacked my
house and threatened my family members. …
... I was terrified and could not sleep for many days. I got very worried about
my family members and decided to leave India immediately. ... They
threatened to kill my ….
This information is relevant to the review because it could indicate that you have
copied your claims from someone else, or that a third party has written your claims.
This could lead the Tribunal to the view that your claims are not genuine. If we rely on this information in making our decision, we may find that you do not have
a well-founded fear of persecution, which would be a reason for affirming the Delegate’s decision.”
The applicant replied that he did not copy his claims. He proceeded to summarise his claims as made in writing and at the hearing.
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.
FINDINGS AND REASONS
Based on the information in their application, the Tribunal finds that the applicants are Indian nationals and members of the same family unit.
The applicant claimed that he was a prominent local campaigner for the BJP and left it and went over to Congress where he was also a prominent campaigner and was consequently targeted by the BJP, reported this to the authorities but was ignored.
However, the Tribunal does not accept that the applicant’s claims are true. Firstly, the Tribunal finds that important parts of his claims have been copied from someone else. There would be no case for doing this if he had genuine claims of his own.
Secondly, the applicant’s claims are also inconsistent with country information which indicates that elections are generally conducted peacefully (considering their scale), leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis, and even people who do publicly express views critical of the government only face a moderate risk of official discrimination.

The Tribunal does not accept that the applicant was politically active as claimed. It therefore does not accept that the applicant was targeted for his political activities or opinion. There is therefore no basis for a finding that he is at risk of being so targeted in the reasonably foreseeable future.
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).
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 to fear serious harm. 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 in relation to those claims. The applicant mentioned in the hearing that he cannot earn enough to support his family in India. However, without more, this does not enliven Australia’s protection obligations.
No protection claims were made specifically in relation to the applicant’s wife, other than those addressed above. The Tribunal considered whether she might be harmed by association with the applicant’s claims. 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 the applicant’s wife is not a refugee or person to whom Australia owes complementary protection obligations.
CONCLUSION
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 also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Genevieve Hamilton
Member

[2022] AATA 2615

30 June 2022

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