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In an impleadment application written to the Chief Justice of India in an ongoing Rohingya refugee deportation matter, the impleader has picked out loopholes on the identification- verification and Refugee Status Determination (RSD) process of asylum seekers including Rohingyas in India by the United Nations High Commissioner for Refugees (UNHCR).

The impleader, a resident of Assam, namely Abhijit Sharmah has said that UNHCR has falsely given all Rohingyas refugee status as the standard of proof used in the identification and verification process by the UNHCR is based on 'balance of probabilities' and 'preponderance of evidence', which is considered a weak standard of proof in India. 

He has stated that Rohingyas are granted refugee status on the grounds of ethnicity and race in India and UNHCR has failed to determine beyond reasonable doubt their place of origin and/or place of original inhabitance. 

The impleader says, “This creates a doubt with regard to the place of origin of Rohingyas as claimed by them (of them being from Northern Rakhine state in Myanmar).”

He has alleged that the Rohingyas were not able to prove their place of origin in the RSD interview conducted by the UNHCR “beyond reasonable doubt”.

"However, since the UNHCR applies the standard of proof which is balance of probabilities and preponderance of evidence, and also shared burden of proof, that raises doubts on the RSD process of UNHCR from the perspective of national security," he has contended. 

To support the contentions raised, he has stated that as per information from various sections of the media, many Rohingyas possess different identity cards of India including Voter Id card and Aadhar Card. He has also alleged that it is unknown whether their identity cards are genuine or forged.

Therefore, praying to the court to allow him to be impleaded as a party in the matter, as he wishes to address the Court specifically on the legal grounds governing the present issue, the impleader has contended that UNHCR discloses only limited information of asylum seekers to host countries’ authorities, which undermines the supremacy of the Constitution of India and domestic laws of India.

Stressing that India is neither a signatory to the 1951 Convention Relating to the Status of Refugees (the 1951 Geneva Convention) nor is there any national legislation on refugees in India, the impleader has further pointed out that in any case, as India follows the ‘Dualist ‘theory of law’, no International Treaty/Convention/Agreement becomes national law unless approved by the Parliament. 

He has further stated that refugee rights and entitlements in India are mainly determined within the parameters laid down under the Constitution of India and the Foreigners Act of 1946.  

"These laws give wide powers to detain and deport foreigners for illegal entry and stay, and accord no differential treatment for refugees" he has added. 

Asking whether someone involved in war crimes, crimes against humanity and genocide, etc would be entitled to international protection, the impleader in his application stated that there is no information of the groups of persons who are seeking asylum and even the UNHCR does not disclose this information relating to exclusion triggers - hiding behind their cloaks of confidentiality.

Therefore, highlighting that there are many militant groups related to Rohingyas like Arakan Rohingya Salvation Army which are active across many countries, he says that suspicion of their affiliation to such militant group cannot be ruled out while granting asylum.

Further stressing that Rohingyas are illegal immigrants who entered in India through Myanmar and Bangladesh, eventually reaching New Delhi and dispersing to other parts of the country like Jammu & Kashmir, Telengana, New Delhi, Uttar Pradesh etc, the impleader alleges that the UNHCR is acting like a surrogate state.

He states that UNHCR is an international organization operating in India and they are here to "supplement government, not to supplant the Government of India."

Lastly, stating that deportation of Rohingyas by the Government of India is not unreasonable and does not infringe their right to equality or right to life, the impleader stresses that in these types of cases, the “proportionality test” laid down by the Apex Court should be applied. 

In this backdrop, he has prayed to be impleaded in the ongoing matter where a writ petition has been filed by one Mohammad Salimullah, a Rohingya refugee, seeking protection from deportation to his home country. 

Cause Title: Mohammad Salimullah v. Union of India and Ors.