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1104608 [2011] RRTA  752  (24 August 2011)

Last Updated: 9 September 2011

1104608  [2011] RRTA 752  (24 August 2011)

DECISION RECORD

RRT CASE NUMBER: 1104608

DIAC REFERENCE(S): 18082010E CLF2011/14712

COUNTRY OF REFERENCE: India

TRIBUNAL MEMBER: Jennifer Beard

DATE: 24 August 2011

DECISION: The Tribunal affirms the decisions not to grant the applicants Protection (Class XA) visas.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicants Protection (Class XA) visas under s.65 of the Migration Act 1958 (the Act).
2. The applicants, who claim to be citizens of India, arrived in Australia on [date deleted under s.431(2) of the Migration Act 1958 as this information may identify the applicants] December 2010 and applied to the Department of Immigration and Citizenship for the visas [in] February 2011. The delegate decided to refuse to grant the visas [in] April 2011 and notified the applicants of the decisions.
3. The delegate refused the visas on the basis that the first named applicant is not a person to whom Australia has protection obligations under the Refugees Convention.
4. The applicants applied to the Tribunal [in] May 2011 for review of the delegate’s decisions.
5. The Tribunal finds that the delegate’s decisions are RRT-reviewable decisions under s.411(1)(c) of the Act. The Tribunal finds that the applicants have made a valid application for review under s.412 of the Act.

RELEVANT LAW

6. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. In general, the relevant criteria for the grant of a protection visa are those in force when the visa application was lodged although some statutory qualifications enacted since then may also be relevant.
7. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
8. Section 36(2)(b) provides as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen (i) to whom Australia has protection obligations under the Convention and (ii) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations) for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include partner and children.
9. Further criteria for the grant of a Protection (Class XA) visa are set out in Part 866 of Schedule 2 to the Regulations.

Definition of ‘refugee’

10. Australia is a party to the Refugees Convention and generally speaking, has protection obligations to people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any 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, is unable or, owing to such fear, is unwilling to return to it.

11. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA [2000] HCA 19; (2000) 201 CLR 293, MIMA v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222clr1.html" class="autolink_findacts">222 CLR 1, Applicant S v MIMA [2004] HCA 25; (2004) 217 CLR 387 and Appellant S395/2002 v MIMA [2003] HCA 71; (2003) 216 CLR 473.
12. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
13. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
14. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
15. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
16. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
17. Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
18. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
19. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

CLAIMS AND EVIDENCE

20. The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

The application before the Department

21. [In] February 2011, the applicant lodged an application for a protection visa which included his wife, daughter and son as secondary applicants. In his application form, the applicant writes that he was born on [date deleted: s.431(2)] in [Town 1], Gujarat, India. He states that he speaks, reads and writes Gujarati, English and Hindi. He also states that he is a Sunni Muslim.
22. The applicant states in his application form that he was married to the second named applicant [in] July 1995 in Gujarat.
23. The applicant claims that he is an Indian citizen by birth and that he does not hold any other citizenship or nationality. A copy of the bio-data pages of his Indian passports are on the departmental file (D1,f.8). Further, he writes that he does not have a right to enter or reside in, whether temporarily or permanently, any country other than India.
24. The applicant states that he travelled to Australia on an Indian passport issued [in] October 2009, which expires [in] October 2019. He states he arrived in Australia on a Tourist visa which was issued [in] August 2010 that expired [in] March 2011. A copy of the Australian visa stamp in his passport is on the departmental file (D1,f.6). He writes that he previously visited Australia from [a date in] October 2006 to [a date in] November 2006; and [a date in] July 2009 to [a date in] August 2009. He states that from July 2007 to December 2010 he resided in Surat, Gujarat; and from December 2000 to June 2007 he lived in Vopi, Gujarat.
25. In terms of his education, the applicant writes that he began his schooling in [year deleted: s.431(2)] and graduated from high school in [year deleted: s.431(2)]. He says he was unable to study between June 1987 and May 1992 due to the communal riots in his region. He states he attended a university college in Ahmedabad from 1985 to 1987 and 1991 to 1992.
26. Prior to travelling to Australia, the applicant states that from June, 1990 to July 1994, he worked as a sanitary inspector with [Employer 2]; from August 1994 to September 2008, he worked as an Assistant Manager with [Employer 3] and from November 2009 to November 2010, he worked as a Sales Manager at [employer deleted: s.431(2)].
27. Attached to his application form is a written statement (D1,ff.1-5). In that statement, the applicant writes that he was born into a traditional Muslim family in Gujarat in an era of communal riots. He states as a result of those riots, from 1974 to 1976, and again from 1984 to 1994, his family moved away from their family home to a safer region. He also mentions that his uncle was killed during one of the riots; and that he was forced to stop attending school from 1983 to 1984; and [university] in 1987. The applicant writes that he was an active member of Chattra Parisad, the student wing of the Congress Party while he was in college in Ahmedabad. He claims that the Akhil Bharati, the student wing of the BJP, threatened him with violence and forced him to leave the college during that time. He says he was required to cease his studies for around four years. During that time, he claims that he actively worked for the Congress Parties and worked in [Employer 2] as a Sanitary Inspector. He states that he worked in that position until 1994 when he left his job because of the animosity and hatred he felt was being directed at him after the demolition of the Babri Masjid mosque; and his own religious and political beliefs. He claims that BJP members tried to kill him on “a number of occasions". He states they also accused him of involvement in Pakistani–backed Muslim organisations and the riots in Ahmedabad. He said he was taken by police to local police station and tortured but later released without charge with the assistance of an INC leader.
28. The applicant also states that [in] July 1995 he married and his first child was born on [date deleted: s.431(2)] and the second child on to [month and year deleted: s.431(2)]. He states that he was required to send his wife away from Surat to [Town 4] to give birth to their first child because it was not safe in Surat at the time. He stated that he gave both of his children Hindu names and changed his wife's name as well.
29. The applicant also claims that in August 1994 he joined [Employer 3] as a junior officer where he worked in two branches until September 2008. The applicant claims that he reported four officers for fraud and that after an internal enquiry those officers were sacked. He said after that they began to threaten him on the phone. The applicant says that they approached their local BJP leader and told him that they had been sacked from their positions because of their membership with the BJP. The local leader, [name deleted: s.431(2)], became involved and the bank manager advised the applicant to resign from his job and move away from Surat. The applicant claims that the left his job [in] September 2008 and hid in Surat until he obtained a visa to travel to Australia.
30. The applicant said he travelled to Australia but returned to India after receiving a telephone call from his wife that someone had threatened to kidnap their children from school. He states he returned to India [in] August 2009, despite fears for his life. He reported the matter to the local police but he claims that as the police are “stooges of Hindu extremist groups RSS and BJP party”. He writes: “When they threatened to kidnap my children, I had given a very little choice. I wanted to get help from my party leader, but they told me that they can do very little about it, because of the degree of difficulty faced by Muslims in Gujarat state".
31. Further, the applicant claims that he was involved in the 2007 Gujarat Assembly election as a member of the Congress Party Election Advisory Committee. He also claims that during the Loksabha election in 2009 he campaigned for the Local Congress leader, [name deleted: s.431(2)], who ultimately lost to the BJP candidate, [name deleted: s.431(2)]. He also claims that he was “actively involved” in the Surat Municipal Corporation election held on 2 December 2010. He claims that at one stage, the Congress Party leader asked him to contest the election but he refused and continued to work for party candidates. He said they lost the Municipal Corporation election. After that, he claims, BJP members began to take revenge on Muslims such that no one wished to run as a candidate against them. He said he had planned to leave the country before the election, but he was required to collect money to support his family expenses in Australia.
32. The applicant writes that in November 2009, he started work with a [company] as a sales manager. He said it was not “an ideal situation” as he continued to fear for his life but explained that he had to make a livelihood.
33. In addition, the applicant writes that his family were nearly killed by the Hindu mobs following the Godhra train burning. He writes:

Before this incident, and there was no shortage of friends who were willing to help during the riot. We took shelter in the Hindu house during the Babri Masjid riot. But it has changed and changed dramatically after Godhra incident. My family and I had suffered greatly post and prior outbreak of the Babri Masjid dispute and the ethnic violence aimed at the Muslims and the discriminatory Policy of the State government dominated by the Hindu radical parties encouraging and/or participating violence aimed at the Muslims.

34. The applicant also claims that his children face harassment at school and are required to remain absent from school when there are any tensions between Hindus and Muslims. He writes that he enrolled his children in good schools in order to avoid such confrontations despite the high school fees.
35. Finally, the applicant claims that his fear is also:

... based on Muslim with political involvement such as I am regarded as a Muslim sympathisers and Congress party members opposed by the BJP government faced real persecution and human right abuses by the government authority and radicals Hindu.

36. [In] March 2011, the applicant attended an interview with a departmental delegate, together with his wife and two children. The delegate cited the applicant’s Indian passport. He confirmed with the applicant that he did not wish to make any changes or corrections to his written application. The applicant told the delegate that he travelled to Australian to obtain shelter for himself and his family. The purpose of his visit to Australia in 2009 was to come here for three to four months to rid himself of problems in India. He stated that three to four months was not long enough. He claimed that he returned to India after 35 days because the people targeting him could not find him, and they threatened to kidnap his children.
37. The applicant also told the delegate that he had travelled by himself to Australia for a holiday and to find somewhere where he could live with his family. He stated that he travelled alone because he did not have enough money to bring his family with him. The applicant denied having invested or transferred any money to Australia.
38. The delegate referred the applicant to folio 5 of the departmental file and the applicant’s written statement that he had actively worked for the Congress Party around the time he came to Australia. The applicant told the delegate that he joined the Congress Party in [1985 or 1986]. He explained that he was working for around two years with Chattra Parisad as a member. During that time he had problems with members of the Rashtriya Swayamsevak Sangh (RSS) and the BJP, which caused him to leave college. He said there was an election for the general secretary of the college. He told the delegate that members of the opposition party threatened him to leave the college as his support was crucial for the success of his own candidate’s election.
39. The delegate read to the applicant what he had written in his statement (at D1,f. 4) about being forced to leave his job because of his political and religious beliefs; that the BJP members tried to kill him on a number of occasions; and that they accused him of being involved with Pakistani-backed organisations and the riots in Ahmadabad and he was taken and tortured by local police. The delegate asked the applicant to provide further details. The applicant said that in 1992, during the Babri Masjid mosque problem there were communal riots. At the time, the ruling party was the BJP. He was working as a Sanitary Inspector. As a result of the communal unrest, as a Muslim he was thought to have been involved in the riots and he was told to leave his job or they would report him to the police on false charges. The applicant said he struggled through for one and a half years and ultimately left his job when he could no longer cope with the pressure. He claimed that he was threatened by some people from the BJP that they would frame him on false charges that he had tortured others and as a main supporter of Muslims. He said that he held a government position, which enabled him to lend support to Muslim people who wished to take action against people in the BJP. When asked for further details about his involvement with the police, he said that people informed the police that he was agitating others to riot. He said he was questioned a couple of times for questioning and torture. When asked to provide details of his torture, he responded that he was interrogated multiple times by police, who threatened him that if he did not leave his job they would charge him. By torture, he meant that he was taken forcefully to the police station and questioned at the request of BJP members.
40. The delegate referred to the applicant’s work at the bank and the fraud of his colleagues in January 2008. The delegate asked for further details. He said that individually or two at a time they would ask him as a witness to “do them a favour” by withdrawing his report and telling the bank that he had been mistaken. He explained the details of the fraud that he had uncovered; and how he had uncovered it. He claimed that the people responsible for the fraud threatened to kill him if he did not withdraw his report; and sought assistance from the BJP leadership. In consequence, he said the management panicked and told him to leave because the “BJP were handling the problem” He left the job. He told the delegate that he was scared and travelled to Australia in 2009. The delegate tried various times to get the applicant to explain why the bank management asked him to resign. The applicant explained that he had been commuting from Surat to Vapi and he was being threatened on the way. He reported this to the bank and the bank told him that these threats were his personal problem and that the bank was unable to help him. He added that the bank was not willing to make a FIR on his behalf.
41. The delegate asked the applicant to tell him about his campaign work in the 2007 and 2009 elections. The applicant claimed that he was involved in strategy and campaigning for the candidate. In particular, he said that after work and on the weekends as a member of the advisory team, he prepared the strategy of who would go to different areas to campaign. He told the delegate that he had been chosen on the basis that he was a secretary of his community. During the campaign, the applicant claimed that he gave many speeches. The applicant admitted that he did not have any documentation with him to support his claims in Australia. In India, he said that he could ask someone to send some paperwork.
42. The delegate asked the applicant about the retaliation against Muslims following the train burning. The applicant said that the Hindu people who had previously been willing to help were no longer willing to do so. The delegate asked the applicant if his involvement in the election campaigns made him even more vulnerable. He answered that it did. He said that there was no point hiding because the people targeting him would find his family and threaten them. When asked if he had ever been mistreated or harmed in India, he answered yes. He said the first time was in 1987 or 1988. The next occasion was during the communal riots in 1992 and 1994 and again in 2003, during his work at the bank in January 2008 and in September 2009 when he returned from Australia. The applicant reiterated his claim that he had travelled to Australia to escape the people who had threatened him after he reported the bank fraud, which he said escalated into a communal, political dispute.
43. The delegate asked the applicant if he had considered moving to a different part of India. He said all India was a problem for him and his family. Therefore, he did not consider moving anywhere in particular as his father had not lived a free life and neither had he. He said it was after December, 2007 that he realised that he needed protection. He claimed that he had watched his father’s life and how he had lost everything more than once because of communal violence. The applicant said that he has also suffered harassment as a Muslim.
44. In conclusion, he claimed that when he visited Australia, his family and children were threatened and his wife called him back to India. He said that his son had to miss school for 8 or 10 days after he was teased and prohibited from school functions because of his religion and forced to sit on the last bench. He claimed that his son was pushed and injured as well.
45. [In] April 2011, the delegate found that he was not satisfied that the applicant is owed protection obligations for the purposes of section 36 of the Migration Act and criterion 866.221 of the Migration Regulations. Accordingly, he refused to grant the applicant a Protection visa.

The application on review

46. [In] May 2011, the applicants lodged an application to have the delegate’s decision reviewed by the Tribunal. [On a further date in] May 2011, the application was constituted to a Member of the Tribunal. [In] June 2011, the applicants were invited to attend a Tribunal hearing [in] July 2011.

The Tribunal hearing

47. The applicants appeared before the Tribunal [in] July 2011 to give evidence and present arguments. The Tribunal also received oral evidence from [Applicant 2]. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.
48. The applicant confirmed that he was born in [Town 1], Gujruat. He informed the Tribunal that he graduated with a Bachelor [degree] from [university deleted: s.431(2)]. He explained that his first year of study should have been the academic year 1983-84. However, he told the Tribunal that he did not commence his studies then because of the communal riots. He explained that his father and his family had to move to a place near [Town 5] where they stayed for six to seven months with Muslim friends. They eventually left [Town 5] because his father’s business was in [Town 1]. He commenced his studies at [college deleted: s.431(2)] [in] 1985. He then took a break over the academic years: 1987/88, 1988/89, 1989/90, and 1990/91; and in 1992/93 he took one year to finish his degree.
49. The applicant gave evidence that in 1987/88 he took time off university after he participated in college elections for General Secretary of the student [body] for the party called Chatra Parisad. He claimed that the opposition asked him to leave where he was studying. He added that he had joined the student wing of the Congress Party when he first joined the college. He admitted that he does not have any evidence from 1987 to demonstrate his membership of the party at that time, such as a membership card. He told the Tribunal he could think of one photo taken after his party had won the election. The Tribunal granted him a period of time following the hearing to obtain and submit the photo.
50. The applicant explained that there were representatives for each of the classrooms. He stated that students in each year were divided into groups A, B and C. The degree took three years to complete and therefore there were nine classes in all, and one candidate was elected for each of the nine classes. He claimed that all of the nine candidates standing for Chatra Parisad were elected. The applicant claimed further that the election was held in July or August 1987 of the 1986/87 academic year, and that he was in the second year of his studies. He claimed that he was one of the successful candidates and after the election, he was chosen from amongst the nine successful candidates to become General Secretary. He said that his rise to General Secretary happened in a very short time as he had only joined the party in his first year.
51. As a result of his success, the applicant claimed that he made some enemies amongst the membership of the Akil Bharati Party, which is the student wing of the BJP and RSS. He said these people did not accept his victory. He claimed further that on his way to college, the other students who lost the election and had the support of more powerful and senior leaders in the BJP would threaten him. He did not remember the names of the BJP leaders, who he said had been given the job of mentoring the student wing of the BJP in that College. He said he was also threatened by ordinary members and supporters of the BJP. When asked to provide more details of the threats made to him, he claimed that on his way from [Town 5] to Ahmedabad, he was approached by other BJP students outside of the college. He stated that these students told him to leave the college and his Party. He said initially he did not leave the party and he continued with his party work.
52. After a month or so, he claimed that four or five students came to threaten him and told him to leave or he would be harmed. He said this occurred five or six months into his second year. He explained that a few members of the BJP party and student supporters “kidnapped him” and took him to a coffee shop to have a meeting in the outskirts of Ahmedabad. At the coffee shop they threatened him with physical harm if he did not give up his position at the college. He said they told him that they did not want to see him at the college again or they would kill him. After that, he returned to his home town and left his studies.
53. The Tribunal asked what support he received, if any, from his party. The applicant said that after he was attacked, members of the Congress Party told him to go into hiding and that they would put someone in his place until it was safe for him to return. The applicant claimed that he “hid at home” for around two to two and a half years. He added that during that time, he continued to remind the Congress Party that he had not graduated and had no job. As a result, a Congress Party member helped him to get a job in [Employer 2] in 1990 as a sanitary inspector, which continued until 1994. When asked he said that he confirmed that he had graduated from the College in 1993 and that he had worked part time in the last year of his studies.
54. The applicant claimed that after he started his job, he lived peacefully in Ahmadabad. He claimed to have followed his political interests by canvasing and undertaking other social work for his community. As an example, he said that he supported his community by taking issues to the Congress Party and he supported the Party by canvassing for various candidates. He said he would take issues to the office of the Congress Party in [location deleted: s.431(2)] or to where the work needed to be done, such as asking for admission into a school or looking for a ration card. The applicant stated that he continued working like this until 1992 when the riots occurred around Babri Masjid.
55. The applicant claimed that because he was a Muslim and because he helped Muslim people in his community, he was asked questions about his work in the community such that his religion became an issue in [Employer 2]. He added that the BJP was the ruling party in [Employer 2]. The applicant claimed that as a result of these events, his religion and his work in the community, he was forced to leave his job. He informed the Tribunal that he had been told that he would be killed and his family would also be harmed if he did not. At the time, he said that he was living in Ahmedabad and his parents were living in [Town 1]. He said the riots lasted for about six to seven months, however, the overall atmosphere for one or two years thereafter remained tense.
56. The applicant gave evidence that he returned to his home town. He then started a new job in Surat in a [bank]. He said he was offered that job after applying in the normal way but added that he hid his identity as a Muslim. He admitted however that everyone in the bank knew that he was a Muslim. He explained that he used to have a beard and wear a topi but he stopped this when he went to work at the bank. He added that this is what he meant when he said that he hid his Muslim identity. He confirmed that he continued practising as a Muslim.
57. [In] July 1995, he gave evidence that he got married to his wife, who is from [Town 4], Amedabad. At the time, he asked his wife to stop using her nickname, [name deleted: s.431(2)], and change her name to [name deleted: s.431(2)]. He explained that his wife’s name was actually [name deleted: s.431(2)] but at home or nearby she was known as [name deleted: s.431(2)] and when she went to school she was known as [name deleted: s.431(2)]. He said he kept his name as [name deleted: s.431(2)] as he was well known in political circles and at work. He said on [date deleted: s.431(2)] their first child, a daughter was born. He named her [Ms A]. He named their second child, a son, [Mr B].
58. During that time, he said that he continued to work at the [bank]. In 2008, he identified some fraud in the bank committed by his manager, [name deleted: s.431(2)] and staff members, [names deleted: s.431(2)]. The applicant had brought with him to the hearing copies of emails that he had sent to various people within the bank regarding the fraud. He said the initial report was sent [in] June 2008 after he dealt with a complaint from a customer. The applicant explained in detail how the complaint arose and the series of events that led him to report the fraud to the regional area head called [name deleted: s.431(2)]. The regional area head then asked the Branch Manager, [name deleted: s.431(2)], to look into the matter. The manager involved in the fraud concocted a story to explain the fraud but then a further fraud was discovered and the applicant claims it was after this that it was discovered that a team of people had been committing a series of frauds on the bank and its customers. Auditors were then sent to the bank by the higher authorities to investigate the employees and the manager. It was proven that the four culprits were guilty and their employment with the bank was terminated.
59. The applicant explained that he had forwarded all of the email correspondence regarding the fraud to his personal email account when he was working at the bank in 2008. He confirmed that he was able to search the internet at his workplace and use an internet email account. The applicant said that he forwarded the correspondence to his own account because he was unable to withdraw the reports he had made and his manager and the other staff members were pressuring him. He said they asked him if it was because he is Muslim and they were Hindu. The applicant said that he also has a scanned copy of the documents proving one of the frauds.
60. The applicant gave evidence that the day after the men were terminated from their employment they tried to threaten him by using their connections to the BJP and RSS. They went to these people and explained what had happened. They created the picture that they were targeted because they are BJP and he is a Muslim. The applicant said that at the time, he was commuting by train from Surat to Vapi and that these men would threaten him on the train. He claimed that they would tell him to leave the job or they would throw him from the train and kill him. He said they said these things purely to take revenge on him. He said that they told him that they lost their employment because he is a Muslim and he had reported Hindus. The applicant said that he left his job to save his life.
61. Further, the applicant claimed that he had sought help from the Manager at the bank. He said that no one took any action. He also tried to have the bank file a complaint against the men with the police. He said he wanted the complaint to be made by the bank because he was an employee of the bank and the issue concerned a fraud on the bank. He felt that his safey was therefore the bank’s responsibility. He said that no one in the bank was willing to take the matter to the police. He said he believed it was due to pressure being place on them by political leaders. He claimed this to be the case because in August or September 2008, he was at the bank when he saw the two employees, who were fired, meet the manger together with two BJP representatives. He said that he did not know their names but he claimed they were wearing BJP uniforms. He added that the BJP represented Vapi. He did not know if they were known at the state level. He said it looked as if they were threatening the manager. He was afraid that these people would try to hide the truth and that is why he kept a copy of the documents that would prove the fraud had taken place. After 2 months he decided to leave the job.
62. The Tribunal asked the applicant if he ever thought to report the matter to the police himself. He said that the police did not accept his First Incident Report; and that was when he had gone to the bank and asked that it report the threats made against him. He added that he took all his documents to the police station in Vapi.
63. After he quit his job, he claimed that he went into hiding in Surat. He said that he knew he had to go to another place as he did not feel safe in Surat. He therefore applied for a visa to travel to Australia in November 2008. He was granted the visa in December 2008.
64. The applicant told the Tribunal that he had already been in Australia on holidays and to visit his nephew in 2006. In his application in 2008, he said that he only wanted to come to Australia as a tourist; not to see family. He added that he had no problems obtaining a passport or his visa. He also confirmed that the information he provided in support of his tourist visa application is true and correct.
65. The applicant claimed that he travelled alone in July 2009 as it was he, who was in hiding; his family stayed in Surat. The applicant gave evidence that as soon as he arrived in Australia, people started to threaten his wife by saying they would kidnap his son if he did not return. He stated that his wife has told him that they broke things and went. He added that these people wanted him to return in order to kill him because he is an active member of the Congress Party, who also reported them for fraud, he said that they wanted to “finish him”.
66. The Tribunal asked the applicant why he had not assumed that if he left the country without his family, they would not be threatened. He answered that he did not have enough money to support everyone’s travel to Australia and so he came alone. He added that he thought once he left, the problem would disappear. The applicant told the Tribunal that his long term plan had been to travel to Australia on the 3 month, multi-entry visa and return after three months and go back into hiding for a while until it was safe.
67. The applicant informed the Tribunal that during his stay in Australia, he resided with Indian family and friends, including his nephew. He also said that he has not told anyone in Australia that he is applying for protection or about his fear.
68. The applicant explained that he left his job at the bank in September 2008. He said that the Lok Sabha elections were held in April, 2009. He said that he was an active participant in these elections, canvassing out of the Congress Part office. He told the Tribunal how he visited his community as a supporter of a Congress Party candidate called [name deleted: s.431(2)]. The applicant informed the Tribunal that this candidate lost the election and is in jail When asked why he is in jail, the applicant said it was because the Congress Party suffered a huge loss. The Tribunal put to the applicant that the information it had before it indicated that the election ran between 16 April 2009 and 13 May 2009. Further, in that election, the National Congress Party secured 262 seats, followed by the BJP with 158 seats, and the BSP won a total of 121 seats. The applicant agreed but responded that in Gujarat, the scene is different. He said that the Congress Party lost many seats.
69. The applicant gave further evidence about his support of other candidates. He gave evidence that he participated as the principal supporter of candidates in the 2004 Lok Sabha elections, the 2007 Gujarat elections, the 2009 Lok Sabha elections, and the 2010 Surat Municipal Council elections.
70. The applicant also gave evidence that if he returns to India now, “they won’t let him live; it is still the same position”.. The Tribunal asked him to provide details. He said the people who will harm him are the communal supporters of BJP and RSS. He added that they will not let him live peacefully because he has a reputed position in his minority community and he is capable of collecting a “vote bank” from that minority, namely the Muslims in Surat and Ahmedabad. He continued that where ever you go in India, Muslims are in the minority. The Tribunal asked the applicant if his name can be found anywhere in the public domain because of his “position of repute”. He said that he gives speeches and that his social service is known to the community. The Tribunal asked if his name appears on flyers or other political documents. He told the Tribunal that he would try to obtain such literature but added that it may have been destroyed after each election. The Tribunal granted him time to do so.
71. The Tribunal asked the applicant what would happen if he went to the police in Surat or Ahmedabad and sought protection from them. He answered that the police would not protect him. He explained that when he was in Australia, and people began threatening his wife, she did go to the police. He said no guard was sent to their home and not even a First Incident Report was taken. He added that the local police are RSS stooges, who do not take complaints from particular communal, minority groups.
72. The Tribunal put to the applicant that from memory, the National Congress Party was in power in around 11 states in India. The applicant responded by saying that since 1998, the Chief Minister, Narenda Modi, has become the most powerful man in Gujarat. The Tribunal pointed out that nonetheless, the Congress Party has power in other states. The applicant responded that even in those states, the communal problems exist because Muslims are in the minority.
73. The Tribunal asked the applicant who he thought would harm him if he moved to another state where the Congress Party is in power. He answered that even in states where the Congress Party is in power, the BJP and its sister concerns such as the RSS, the Vishnu Hindu Party and Vardrinda are also active. The Tribunal asked him how these parties will harm him. He said that they harm Muslims.
74. The Tribunal asked the applicant why he believes he personally will be persecuted or targeted by particular people by reasons of his political opinion or religion across India. He answered that there are three reasons why he is not safe anywhere in India. First, he is a Congress Party supporter. Second, he is the leader of a minority community. Third, he is responsible for the termination of four bank officers, including a branch manager, from their employment.
75. The Tribunal referred the applicant to his support of the Congress Party in particular and asked him how that association would affect his capacity to move to a state in India where: the Congress Party is in power; he does not have the public profile that he carries in his community in Gujarat; and nobody knows that he reported his colleagues for fraudulent activities. He answered that the RSS, Vishnu Hindu Party, and the Vardrinda will all correspond with each other through existing channels of communication that will enable people to identify him where ever he goes. He said that first of all, he could be identified because he is a person from Gujarat. Second, he said that because he is a Muslim from Gujarat, people will be more interested in him. The applicant added that he is also unable to relocate because of language, but this is a minor problem compared to his fear of persecution.
76. The Tribunal asked how many times his wife received threats while he was in Australia. He answered that his wife was threatened 3 to 4 times. He said that these threats took place at her home because they had gone there to look for him. He added that on a couple of occasions the same people came but otherwise different people came. He also claimed that she was probably threatened more often but knowing his wife she had probably only told him about a few times. The applicant said that if was when his wife told him that they had broken things in the house and threatened her that they would kidnap the children from school that he came. He said that although she has not told him so, he believes they may also have physically threatened her.
77. The Tribunal asked him how he could make that claim given that he was not there when the threats were made. He said his wife is a courageous woman and when she rang him and told him to come back, he knew that something more serious must have happened to her.
78. The applicant gave further evidence that when he returned to India, he tried to file a FIR with the police. He said he also contacted Congress Party leaders and asked them to help his family. The applicant informed the Tribunal that the Congress Party officers told him that it was not their problem as it had become “a bigger issue”. He said they also advised him and his family to leave India or “he will 100% be killed” He confirmed that he had spoken to [names deleted: s.431(2)], both of whom are senior leaders and candidates who lost in the last election.
79. The Tribunal asked the applicant if he wished to give any further evidence. He stated that since the 2002 Godra train burning, it has not been peaceful in Gujarat; with communal riots here and there. He said that he feels as if he is sitting on a ticking bomb. He reported that the Home Minister, the Police Commissioner and the Assistant Police Commissioner are in jail because they were found responsible for the communal riots. He referred to a comment in an article dated 23 December 2010 that even Rahul Ghandi has commented that Hindu terrorism is worse than Muslim terrorism. The applicant submitted a number of media articles about the situation in Gujarat.

Evidence of [Applicant 2]

80. The applicant’s wife also gave evidence at the hearing. She was not present when the applicant gave his evidence. The witness was asked to tell the Tribunal about the threats she received while her husband was in Australia. She answered that people began bothering her during her husband’s second trip to Australia. She said that they even threatened to kidnap her children and they tried to physically abuse her. The witness gave evidence that people came to the house two to three times but it was only after they threatened her children that she rang her husband. When asked if she was sure about the number of times she had been threatened, she said it might have been three or four times but she could not remember clearly. The Tribunal asked her on which occasions she was actually physically harmed. She answered that she was physically harmed two to three times. The Tribunal asked her how she was harmed and she answered that they did not “do the ultimate thing”; she said they hit her on her face and her back. She added that there were three or four men but she did not remember clearly. The Tribunal asked her if they knocked her down and she answered that they were all strong men. The Tribunal asked the witness if they have a security wall around their compound. She said that she lives in an apartment building and that they pushed open the door. The Tribunal asked the witness what they were asking her to do. She said that she was told to call him and tell him to come back. The Tribunal asked her why they wanted him to return. She said it was because he was in the Party and they wanted to take revenge on him and not her. She added that they wanted revenge because he is in the Party and there were people working under him and they did not like that. She said that the person under whom he was working did not like what he was doing.
81. The Tribunal asked the witness why she did not travel to Australia with her husband. She said it was because they did not have enough money and she thought if he went that they would all be left alone. The applicant reported that their long term plan had been for her to get a small job to look after herself and the children while they waited for two or three years for things to cool down. She said if in the meantime, if his party had won, he could have come back.
82. The witness gave evidence that after the applicant returned to India, people continued to come to his house and threaten him. She said that he handled the matter. She added that sometimes she would accompany him when he went out, whatever the time, because she was scared that they would harm him. When asked why the family did not relocate to another part of India, she said that “it is difficult and these people have strong influence and they could have found them”.

Applicant’s response and further evidence

83. After the witness had given her evidence, the applicant was asked if he wished to say anything in response. He made no response.
84. He said that they will be killed if they go back due to the political views and the four people who were fired. He also said that they will not let him live peacefully. She said the first time he made a mistake to come by himself and that this time they had come together as a family.
85. The Tribunal asked the applicant if, when he returned to India, he was in hiding. He responded that sometimes he was in hiding and sometimes he was out as he required to arrange his family’s travel to Australia. The Tribunal put to him that in his written statement he had given evidence that he was an active participant in the Municipal Council elections in 2010. He answered that he did not want to participate but he needed to earn money in order to travel to Australia. During that time, he said the senior leaders forced him to support him.
86. The Tribunal told the applicant that it did not understand, if he was in fear of his own life and that of his family members, why he did not leave Gujarat while he arranged his affairs. He answered that he could not have gone somewhere else because he was applying for a visa. The Tribunal observed that the Australian High Commission is in New Delhi. He said he needed to remain at his residential address listed in his passport. He also said that it was easier for him to stay at home and manage from there even if his life was in danger because he needed to go to collect money from the bank and gather documents. He explained that he was in hiding at the time. The Tribunal observed that he was also canvassing in elections. He responded that he had not supported the Congress Party since April 2009. He then added that he only “showed his support” in the 2010 Municipal Elections. The Tribunal read out the claim in his written statement that he was an active participant in those elections and had in fact been asked to contest the election. The applicant responded that he only showed his support but he did not actively participate because the Party had not supported him and his family.
87. The Tribunal asked the applicant if there was any further evidence that he wished to give. He commented that Gujarat has continuous communal issues that are still not over. He said this will continue to be a problem for his children. When asked to provide details, he said they would be discriminated against because of their religion rather than his political opinion as they eat meat and at school they have been told to sit on the last bench and they are not able to participate in school functions. He said that he has even given his children Muslim names and his wife intervened to say that she has changed her name also because of discrimination she has faced in her own childhood.
88. The Tribunal asked if “[Ms A]” and “[Mr B]” were Hindi names; or simply not Muslim names. He commented that they are Hindi names. He said “[name]”, his wife’s name, is never a Muslim name.

FINDINGS AND REASONS

The nationality of all applicants

89. The Tribunal finds that the all of the above named applicants are Indian nationals for the purposes of the Convention on the basis of the certified copies of their Indian passports on the departmental file. None of the applicants claim to be a national or citizen of any other country than India. It follows that the Tribunal must consider any claims the applicants have against their country of nationality, India.
90. The Tribunal is further satisfied that none of the applicants have applied for refugee status or migration to any other country other than Australia. Nor have they been assessed for refugee status or assisted by the UNHCR.

The first named applicant

91. The first named applicant claims that if he returns to India, he will face persecution on the basis of his political opinion and his religion.
92. On the basis of the evidence before it, the Tribunal is satisfied that the applicant is a Muslim.
93. The Tribunal is also satisfied that the applicant’s evidence regarding his political activities and involvement with the Congress Party in India is credible. The Tribunal finds that the applicant is an ordinary member of the Congress Party in India, who is well known by local, Muslim communities in Surat and Ahmedabad because of the social services he has performed for them on their behalf; and due to the fact that he has canvassed in these communities on behalf of Congress Party candidates.

However, the Tribunal is not satisfied that the applicant’s religion or his political opinion is the essential and significant reason for the persecution feared by the applicant in India; and makes findings in that regard below. Moreover, for reasons set out below, the Tribunal finds that the applicant’s fear of persecution is not well founded.

Furthermore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of race, nationality or any particular social group.

The applicant’s fear of persecution if he returns to India

94. The applicant claims that if he returns to India he will be seriously harmed and most likely killed. He claims that he will be harmed or killed by supporters of the BJP and other like-minded parties such as the RSS, Vishnu Hindu Party, and the Vardrinda He claims further that these people will harm him because he reported four of his colleagues including the Branch Manager of a bank where he once worked for fraud. As a result of that report, he claims all four bank officers were dismissed from their employment and they now wish to take revenge against him. However, he argues that the harm he will suffer at the hands of these people or their associates is not merely motivated be a personal desire for revenge; but also motivated by religious prejudice and the fact that he is actively involved in Congress Party activities.

The applicant’s claims of past persecution in India

95. In order to further demonstrate that his fear of harm in the reasonably foreseeable future in India is well-founded, the applicant has submitted additional claims of past persecution suffered by him for reasons of his religion and/or political opinion.
96. In his application, the applicant claims that his family was required to move out of their home and live with relatives from 1974 to 1976, and again from 1984 to 1994 following communal riots. For the reasons given below, the Tribunal finds that this claim is exaggerated and that the applicant’s family was not displaced for two years during the 1970s and again for ten years in the 1980s and 1990s.
97. The Tribunal has had regard to the claims made by the applicant in his visa application form, the attached written statement and his oral evidence at the Tribunal hearing. On the basis of that evidence, the Tribunal accepts that an uncle was killed during one of the riots. The Tribunal also accepts that the applicant may have been forced to defer his schooling in or around 1983 to 1984 when his family moved in with relatives for six to seven months in [Town 5] but the Tribunal cannot find any country information supporting the claim that there were riots during 1983 to 1984. Nor can the Tribunal find objective evidence to support a finding that the applicant’s family was dislocated due to communal riots in Gujarat from 1974 to 1976.
98. Country information before the Tribunal indicates that from 18 to 30 September 1969 there were riots in Ahmedabad between Muslims and Hindus involving injury and destruction of life and property. A Commission of Inquiry commissioned by the Government of Gujarat, the Reddy Commission, found that the violence had been triggered by an alleged attack on the Hindu Jagannath temple by Muslim worshippers at a nearby dargah (shrine). The Report notes at least 660 casualties were recorded for this period in Ahmedabad as well as the destruction of 6742 properties of which 671 were Hindu properties and 6071 belonged to Muslims (Reddy 1970: 179-80) Rajeshwari reports that communal riots between Hindus and Muslims in Ahmedabad led to the deaths of an estimated 512 people (Rajeshwari, B. 2004, ‘Communal Riots in India – A Chronology (1947-2003)’, Institute of Peace and Conflict Studies, March, p.6). The Tribunal also notes that families and individuals of all religions were dislocated as a result of the riots. There is therefore no country information before the Tribunal to support the applicant’s claim that his family was forced to move away from [Town 1] for six to seven months at some point between 1974 to 1976. There is also country information available that indicates that student protests against government corruption led to two days of widespread rioting in Gujarat in 1974 (‘Pulse of the People’ 2007, India Today, 20 December http://indiatoday.intoday.in/site/story/Pulse+of+the+people/1/2727.html – Accessed 18 August 2011). On that basis, the Tribunal is willing to accept the applicant’s claim that in 1974 his family may have been dislocated temporarily from their home in [Town 1].
99. The next reported riots took place in 1982 when communal clashes between Hindus and Muslims occurred 19 times in Gujarat over a ten month period, resulting in 17 deaths and 50 people being injured (Rajeshwari, B. 2004, ‘Communal Riots in India – A Chronology (1947-2003)’, Institute of Peace and Conflict Studies, March, p.11). In 1985, Hindu-Muslim rioting in Ahmedabad lasted for four months, resulting in 220 deaths (Ul-Huda, K. 2011, ‘Marginalizing Muslims in Gujarat’, Two Circles website, 20 March http://twocircles.net/2011mar20/marginalizing_muslims_gujarat.html – Accessed 18 August 2011).
100. While these reported incidents did not occur in the years 1983 to 1984 when the applicant claims that he and his family relocated to [Town 5] and he was required to defer his schooling, the Tribunal accepts that contained rioting may have occurred in his home village that was not reported. The Tribunal is therefore willing to accept that the reason why the applicant’s family moved in with relatives for six to seven months in [Town 5] in 1983 to 1984 may have been due to communal rioting.
101. However, the Tribunal has given its findings regarding the early relocation of the applicant’s family in the 1980s little weight in its consideration of whether or not the applicant has a well-founded fear of persecution in the reasonably foreseeable future. While the Tribunal finds that the applicant and his family are likely to have been subjected to the generalised communal violence of the riots and their aftermath; the Tribunal finds that any harm that may have been caused to the applicant as a result of that communal violence occurred too many years ago to remain significant. Therefore, the Tribunal is satisfied that the reasons underlying any harm suffered by the applicant that long ago cannot be attributed, on the evidence before the Tribunal, to a well-founded fear of harm in the reasonably foreseeable future if the applicant returns to India.
102. The Tribunal notes that the applicant graduated from high school and commenced his university studies in 1985. In his first year of university, he claims to have joined the National Congress Party as an ordinary member. In his application form, the applicant claims he completed two years of university from June 1985 to June 1987; and his final year in 1991/92. In the written statement attached to his application form, the applicant writes that he was unable to continue his university studies from June 1987. At the hearing he confirmed that his last year of university was the academic year 1991/92. After a series of questions, he then gave evidence that he commenced his studies [in] June 1985. He did not study in the years 1987/88; 1988/89; 1989/90; and 1990/91 and in 1992/93 he took one year to finish his course. The Tribunal accepts this evidence.
103. The applicant has relied on events during his university studies to argue that he faces a real chance of persecution if he returns to India for reasons of his religion and his political opinion. In particular, the applicant claims in his written statement that after the successful election of Chattra Parisad members, including him, to represent the student body of the [Faculty], he was appointed to the position of General Secretary. He gave evidence that the election was held in July or August 1987 of the 1986/87 academic year, and that he was in the second year of his studies. He claims that because of his popularity and success as a Congress Party representative, members of the Akhil Bharati, the student wing of the BJP, threatened him with violence and forced him to leave the college and cease his studies for around four years from mid-1987 to mid-1992.
104. The Tribunal notes that during an interview with a departmental delegate, the applicant did not provide clear details about the extent of his involvement in the student body elections and, in particular, he did not clearly state that he was appointed to the position of General Secretary. The Tribunal finds, however, that his evidence at the Tribunal hearing in that regard remained internally consistent despite detailed questioning. The Tribunal is satisfied that the applicant was actively involved as a student with Chattra Parisad in student elections. Having made that finding, the Tribunal finds that whether or not the applicant was in fact elected to the position of general secretary is not significantly relevant to the issue of whether he now faces a real risk of persecution in the reasonably foreseeable future and makes no finding in that regard. Moreover, for the following reasons, the Tribunal finds that his involvement in student politics in Ahmedabad over twenty years ago does not support his claim to have a well-founded fear of persecution if he returns to India now or in the reasonably foreseeable future.
105. At the hearing, the applicant claimed that on his way to college, the other students who lost the election and had the support of more powerful and senior leaders in the BJP threatened him. He did not remember the names of the BJP leaders, which indicates to the Tribunal that the involvement of more prominent figures of the BJP, if any, was unremarkable. While the Tribunal accepts that these events are said to have occurred a long time ago, the Tribunal considers that it would be reasonable for a person such as the applicant who has remained continuously involved in politics to remember the names of his opponents, particularly those who have allegedly caused him harm. When asked to provide more details of the threats made to him, he claimed that he was threatened by BJP students outside of the college. He stated that these students told him to leave the college and his Party. He said he did not leave the party and he continued with his party work. After a month or so, he claims that four or five students threatened him and told him to leave or he would be harmed. He said this occurred five or six months into his second year.
106. However, earlier on in the hearing, he had said that the elections themselves did not occur until July or August 1987 of his second year of studies. That would indicate that election took place at the end of one academic year in relation to the next academic year. He also claims that a few members of the BJP party and student supporters “kidnapped him” However, he claims that they then took him to a coffee shop, which indicates to the Tribunal that the “kidnapping” was not a serious deprivation of his liberty. The Tribunal accepts that earnest talks might have occurred and threats made. However, for reasons that follow, the Tribunal does not accept that the threats amounted to serious harm. The Tribunal notes that the applicant told the Tribunal that at the coffee shop they threatened him with physical harm if he did not give up his position at the college. He then added that they had told him that they would kill him. After that, he claims to have returned to his home town.
107. Overall, the Tribunal finds that the applicant exaggerated many of his claims about the events that unfolded during his involvement in student politics. In particular, the Tribunal notes the manner in which the applicant claims to have been “kidnapped” on his way to college but then describes how he was taken to a coffee shop to be verbally threatened. The Tribunal also has concerns about the credibility of the applicant’s claim that members of the Congress Party told him to go into hiding and that they would put someone in his place until it was safe for him to return and does not accept that the applicant was in fact given such advice from a major political party. Further, the Tribunal has serious doubts that the applicant actually “hid at home for around two to two and a half years” as he claimed at the hearing.
108. The Tribunal also notes that initially at the hearing, the applicant said that when he returned to college he completed his studies within one year. He then claimed that he graduated from the College in 1993 but that he worked part time in the last year of his studies (1992/1993) while he worked at [Employer 2]. In his written statement attached to his application, he claims to have graduated in 1992. In the application form itself, the applicant claims that he completed his first year of a Bachelor [degree] at the college from 1985 to 1986; his second year from 1986 to 1987 and his third year from 1991 to 1992. There is no indication in any of the claims he made at the time of application that he studied part time.
109. The applicant claims further that after complaining to the Congress Party that he had not graduated and had no job, a Congress Party member helped him to get a job in [Employer 2] in 1990 as a sanitary inspector, which continued until 1994. This means that for around two years from late 1987 until 1990, the applicant remained in his home town in hiding and did not attempt to relocate or otherwise further his studies or find a job himself until offered one by a political contact. Given the success and ambition otherwise demonstrated by the applicant in his personal history, the Tribunal finds the applicant has exaggerated the claim and does not accept the truth of it.
110. More significantly, the applicant claims in his written application to the Department that from June 1987 to May 1990 he did “no study for communal riots”. This is inconsistent with the claim that he was prevented from studying because of threats made against him by individual people opposed to his success as a student politician. It is also inconsistent with country information. Rajeshwari reports that in July 1986 in Ahmedabad, violence broke out during the historic Rath Yatra procession through the walled city areas. Disturbances started after the annual Rath Yatra of Lord Jagannath was subjected to a heavy stone throwing barrage in the sensitive Dariapur and Kalupur localities. The violence left 59 dead and 80 people injured. The next communal riots to occur in Ahmedabad occurred between April and December, 1990 when nearly 1400 communal incidents in Gujarat left 224 people dead and 775 injured. A separate incident in Ahmedabad in October resulted in 41 deaths. Then between January and April, 1991, 120 riots in Gujarat saw 38 killed and 170 injured (Rajeshwari, B. 2004, ‘Communal Riots in India – A Chronology (1947-2003)’, Institute of Peace and Conflict Studies, March, p.17). According to The Australian, Hindu-Muslim clashes continued in January 1993 following the destruction of the Babri mosque. An estimated 240 people were killed, while hundreds of shops and homes were set alight during communal violence in Bombay (Mumbai) and Ahmedabad (‘Army Stifles Anti-Muslim Pogrom’ 1993, The Australian, 13 January).
111. Having considered the evidence overall, the Tribunal is not satisfied that the applicant ceased to study for four years because of threats made to him by other students or by others associated with the BJP or because of communal riots more generally. Furthermore, the Tribunal finds that the applicant was not in fear of persecution during the years he deferred his university study. Whatever the reason for his deferral, the Tribunal accepts the applicant’s claim at the hearing that he actively worked for the Congress Party as well as [Employer 2] as a Sanitary Inspector and that he was not in fear of being singled out and persecuted because of his politics or religion.
112. The Tribunal accepts that [in] July 1995 the applicant married and his first child was born on [date deleted: s.431(2)] and the second child on [date deleted: s.431(2)]. He states that he was required to send his wife away from Surat to [Town 4] to give birth to their first child because it was not safe in Surat at the time. The Tribunal is willing to give the applicant the benefit of the doubt and accept that the applicant’s wife may have felt safer in [Town 4] but also notes that it is common for a woman to return to her family to give birth. In any event, the Tribunal has given these claims little weight in its consideration of whether or not the applicant faces a real chance of persecution in the reasonably foreseeable future if he returns to India.
113. The Tribunal also accepts that [Mr B] is a Hindu name; and it accepts that [Ms A] is neither a Hindu nor a Muslim name. The Tribunal is also satisfied that the first-named applicant and his wife may have chosen these non-Muslim names in order to protect their children from the discrimination and teasing that they themselves faced as children growing up. However, the Tribunal finds that the fact of these names does not lend any significant weight to the applicant’s claims that he had a fear that he or his family were facing a real risk of serious harm.
114. In making that finding, the Tribunal acknowledges that communal tensions did and continue to exist in Gujarat. The more recent Godhra train burning is evidence that tensions can quickly escalate into a major episode. The Tribunal also recognises that the violence has been directed toward particular religious groups and in that respect has been systematic rather than random. Indeed, a further claim made by the applicant is that he and his family were nearly killed by the Hindu mobs following the Godhra train burning. He writes:

Before this incident, and there was no shortage of friends who were willing to help during the riot. We took shelter in the Hindu house during the Babri Masjid riot. But it has changed and changed dramatically after Godhra incident. My family and I had suffered greatly post and prior outbreak of the Babri Masjid dispute and the ethnic violence aimed at the Muslims and the discriminatory Policy of the State government dominated by the Hindu radical parties encouraging and/or participating violence aimed at the Muslims.

115. Country information indicates that in February 2002, at least 57 people were killed in the Gujarat town of Godhra, where Muslims attacked a train carrying Hindu pilgrims returning from a disputed religious site. Among the casualties were 15 children, 17 men and 25 women; dozens more were reportedly injured. The attack led to nationwide riots, resulting in the deaths of an estimated 2,000 people (Scores killed in India train attack’ 2002, BBC News, 27 February http://news.bbc.co.uk/2/hi/south_asia/1843591.stm – Accessed 8 November 2006). In March 2002, The Guardian reported that while Indian troops reportedly took control of the Gujarati region on 2 March, their belated deployment was considered to be more a political gesture rather than one of concern for the well-being of the Muslim population (‘Police took part in slaughter’ 2002, The Guardian, 3 March http://www.guardian.co.uk/Archive/Article/0,4273,4366650,00.html – Accessed 7 June 2007).
116. According to Human Rights Watch in April 2002, Indian government officials acknowledged that more than 850 people – most of them Muslims – were killed in Gujarat in the wake of the Godhra train burning. Between 28 February and 2 March, “a three-day retaliatory killing spree by Hindus left hundreds dead and tens of thousands homeless and dispossessed” While the Gujarat government reportedly referred to the violence as a spontaneous reaction to the Godhra incident, a range of human rights organisations and much of the Indian press largely indicated that the attacks on Muslims were premeditated and were planned well before the Godhra incident. It was also widely believed that the violence was organised with the support of the police and in cooperation with officials of the Bharatiya Janata Party (BJP) state government (Human Rights Watch 2002, We Have No Orders to Save You: State Participation and Complicity in Communal Violence in Gujarat, Vol.14, No.3, April, Section I). According to the US Department of State (USDOS) in 2010, over 4,300 Muslim families – between 25,000 and 30,000 individuals – remained internally displaced and living in makeshift camps with inadequate infrastructure. Those in the camps reportedly fear retaliation by their Hindu neighbours if they were to return to their villages (US Department of State 2010, International Religious Freedom Report for 2010 – India, 17 November, Section II).
117. According to the applicant’s own evidence, he was living in Vapi at the time, which Wikipedia reports is about 180km to the north of Mumbai and about 125 km to the south of Surat. It is clear from the applicant’s own claims and evidence that his home was not destroyed in the riots and that he and members of his family have not been displaced. The Tribunal has been unable to locate any reference to Vapi in the country information before it. The Tribunal notes that the applicant has also made claims that he did not move to Surat until 2007.
118. Since 2002, the applicant has continued to work in professional roles in established places of employment. He has also remained actively involved in political campaigning for the Congress Party. His children continued to attend well reputed, private schools. The Tribunal finds that although the applicant and his family may have been in danger during the riots themselves, there is no significant evidence demonstrating that there is a real chance that the applicant or his family face persecution due to the effects of the riots in 2002. The Tribunal finds that even if the applicant were caught in the riots following the Godhra train burning, he does not now face a real chance, as distinct from a remote or far-fetched possibility that if he returns to India he will be targeted in a deliberate, pre-meditated or intended way on Convention grounds in the reasonably foreseeable future as a result of what happened to him during the riots following the Godhra train burning.
119. The applicant has made the further claim that he worked as a sanitary inspector until 1994 when he left his job because of the animosity and hatred he felt was being directed at him after the demolition of the Babri Masjid mosque in 1993; and because of his own religious and political beliefs. The Tribunal notes the country information referred to above that in January 1993 following the destruction of the Babri mosque, an estimated 240 people were killed, while hundreds of shops and homes were set alight during communal violence in Mumbai and Ahmedabad (‘Army Stifles Anti-Muslim Pogrom’ 1993, The Australian, 13 January).
120. The applicant claims further that BJP members tried to kill him on “a number of occasions”. He states they also accused him of involvement in Pakistani–backed Muslim organisations and the riots in Ahmedabad. He said he was taken by police to the local police station and tortured but later released without charge with the assistance of an INC leader.
121. The Tribunal finds that the applicant has exaggerated his claims and it does not accept that BJP members tried to kill him on “a number of occasions”; or accused him of involvement in Pakistani–backed Muslim organisations and the riots in Ahmedabad. In terms of his employment, the Tribunal accepts that animosity and political in-fighting would have occurred at his place of work as and when communal tensions increased in Gujarat, particularly after the demolition of the Babri Masjid mosque.
122. The Tribunal notes that according to a comparative study conducted by the Election Commission of India (ECI), the BJP held power in the Federal Parliamentary constituency of Ahmedabad from 1989 until at least 2004 (Partywise Comparison since 1977 – Ahmedabad Parliamentary Constituency’ (Undated), Election Commission of India website http://eci.nic.in/eci_main/electionanalysis/GE/PartyCompWinner/S06/partycomp10.htm – Accessed 17 August 2011). Additional ECI data indicates that the BJP retained both the East and West Ahmedabad constituencies’ at the most recent Lok Sabha election in 2009 (‘Voting by Constituency – Gujarat 2009’ (Undated), Adam Carr’s Election Archive website, Source: Election Commission of India http://psephos.adam-carr.net/countries/i/india/2009/gujarat.txt – Accessed 17 August 2011). While no official figures could be located with regard to the Ahmedabad Municipal Corporation (AMC) in the early 1990s, media reporting indicates that the BJP was defeated by the Indian National Congress party (INC) in 2000, “ending its uninterrupted 13-year rule” (‘BJP wrests control of Ahmedabad municipal body’ 2005, The Hindu, 16 October http://www.hindu.com/2005/10/16/stories/2005101605480800.htm – Accessed 17 August 2011).
123. The applicant claims he began work at [Employer 2] from 1990, which continued until 1994. If, as the newspaper article suggests, the BJP was in power in Ahmedabad for 16 years prior to 2000, then the applicant would have in fact obtained his position at [Employer 2] when the BJP was in power and also lost his job while the BJP was in power of the city government.
124. The Tribunal has also had regard to the applicant’s claims that he found a well-respected job in August 1994 soon after he left [Employer 2]. The Tribunal accepts that he joined [Employer 3] as a junior officer where he worked in two branches until September 2008. The Tribunal accepts this claim on the basis of the applicant’s oral evidence and the copies of emails he submitted that had been forwarded to his personal email account from his [Employer 3] email account.
125. Having considered the credibility of the applicant’s claims overall, given their unreliable and exaggerated nature, the Tribunal does not accept that the applicant left his job at [Employer 2] because he was in fear of being seriously harmed or subjected to false charges by police stooges. The Tribunal accepts he may have left the job for political and religious reasons given that the BJP did hold power of the Municipal Corporation but he did so knowing that he would assume a well-respected job in a bank. The fact that the applicant took such a position in the same region supports the Tribunal’s finding that he was not in fear of his life; or afraid of being accused of terrorist activities or other kinds of serious harm.
126. The applicant claims that while he was working at the bank he reported four officers for fraud and that after an internal enquiry those officers were sacked. The Tribunal accepts this claim, on the basis of the copies of emails sent between the applicant and his superiors within the Bank, which were submitted to the Tribunal at the Tribunal hearing and sighted by the Tribunal member by accessing the applicant’s email account.
127. It is reasonable to expect that after these four men were terminated from their positions, they may have approached their local BJP leader and told him that they had been sacked from their positions and asked that he use his influence to find a remedy for them. However, the Tribunal does not accept that these men could have convinced anyone that they were sacked because of their membership of the BJP when there was clear evidence that could be produced by the bank of their fraudulent activities. If anything, these men appear to have tried to use their connections with BJP leaders to continue in employment at the bank.
128. The Tribunal also accepts that these men may have attempted to bribe or threaten the applicant while he was at the bank to retract the allegations of fraud made against them. If they also threatened the applicant over the telephone because they held him responsible for the loss of their job and their reputation, the Tribunal finds that the applicant has understood these threats as empty ones and any such threats did not amount to serious harm. In that regard, the Tribunal notes that the applicant did not seek to relocate his family to a safer area but continued his life by remaining at his place of residence except when he was in Australia. As stated immediately below, the Tribunal finds that the purpose of the applicant’s travel to Australia was not to flee persecution but to seek a better future for his family. The Tribunal finds that this was the reason why he left his job at the bank. He did not leave his job on the advice of senior bank staff. The Tribunal also observes that the applicant continued to remain active in political campaigning throughout the period he claims he was being threatened by the four men. The evidence before the Tribunal is that the applicant continued his work in public life and remained actively involved in political campaigning for the Local Congress leader, [name deleted: s.431(2)] in the Lok Sabha elections, which according to country information before the Tribunal were staggered between 16 April 2009 and 13 May 2009. If the applicant had feared for his life or had a fear of serious harm, it is highly unlikely that he would have remained in the region and continued to engage in such public duties. Therefore, the Tribunal does not accept that these men have threatened to kill the applicant or that he fears that these men will cause him serious harm now or in the reasonably foreseeable future. The Tribunal finds that the claims of the applicant regarding the threats, if any, that he received from the four, former colleagues have been exaggerated to produce a favourable immigration outcome in Australia. In making this finding, the Tribunal has considered the evidence of the second named applicant that after the first named applicant returned to India, people continued to come to his house and threaten him and that she would sometimes accompany him when he went out, because she was scared that they would harm him. As stated below, the Tribunal finds these claims to be unreliable.
129. The Tribunal finds further that the applicant travelled to Australia [in] July 2009 and that he returned to India [in] August 2009. Given the concerns the Tribunal has raised about the applicant’s credibility and having taken into account his general claims about wishing to raise his children here in Australia, the Tribunal finds that the reason why the applicant returned to Australia was not because he had received a telephone call from his wife that someone had threatened to kidnap their children from school. The Tribunal also does not accept that they reported the matter to the local police but obtained no assistance from them. The Tribunal finds that the applicant returned to India to arrange for his family to return with him to Australia.
130. On the basis of the above findings that the applicant was not in fear of being seriously harmed by his former colleagues when he left India, the Tribunal also finds that he was not in fear of being seriously harmed upon his return to India. The Tribunal notes that this finding is supported by evidence that he continued his active involvement in local politics, and was actively involved in the Surat Municipal Corporation election held on 10 December 2010. The Tribunal notes from country information before it that the BJP secured 98 of the 114 seats, followed by the National congress Party with 14 seats. Since the evidence of the applicant is that the candidate he supported was not elected, the Tribunal does not accept that BJP supporters took retaliatory action against Congress Part supporters. This finding is supported by the fact that the BJP won the election overall.
131. Further, the Tribunal’s finding that the applicant was not in fear of serious harm after he returned to India is supported by the fact that he returned to live with his family in the same region and sought and obtained employment as a sales manager. The Tribunal does not accept the claim made by the applicant that he was required to remain close to his home in order to arrange his affairs and apply for visas to return with his family to Australia, despite the fact that the lives of his family were in danger. The Tribunal finds if the applicant was able to travel to Australia and if he was in genuine fear for his own life and the lives of his family, he would not have led such an ordinary life; and certainly would not have continued to live it in his home region.
132. Since the Tribunal finds that the claims of threats made by the four men in the past do not amount to serious harm, the Tribunal is satisfied that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future if he returns to India from these men. Accordingly it is not necessary for the Tribunal to consider the further issue of whether the fear of revenge in this case is linked with a racial, religious or other Convention reason. However, the Tribunal is mindful of the observations of Justice Sackville (North J agreeing) that there may be circumstances in which the decision maker must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur (MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 239). The Court held at 240:

When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution.

133. The Tribunal notes in this case, that the applicant claims that the four men, who were sacked from the bank as a result of the applicant’s actions, also sought to harm him because he is a Muslim and a member of the Congress Party. If the Tribunal is wrong about the nature of the threats made to the applicant, the Tribunal nonetheless finds that the harm feared is not in fact motivated by one or more of the Convention reasons but by personal revenge. A useful illustration is the decision of Magyari v MIMA unreported, Federal Court of Australia, O’Loughlin J, 22 May 1997, the applicant was a passenger in a motor vehicle that was involved in an accident in which a young gypsy boy suffered serious injuries. The applicant feared revenge from the gypsies. O’Loughlin J stated (at 16-17):

[The applicant] has been hounded by the gypsies because of what he, in their perception, has done. They see him as the party, or one of the parties, responsible for the injuries that the child has suffered. The applicant's alleged fear derives from these circumstances which have nothing whatsoever to do with any of the five convention reasons. The gypsies are not concerned with his race, religion or nationality, or with his membership of any social group or with his political opinion. Rather they are concerned to exact some form of retribution from him for what has happened to the child. ... If the applicant has a well founded fear of being persecuted by the gypsies ... the Tribunal was correct in concluding that the fear has no connection with any one of the convention reasons.

134. In terms of authority for the proposition that revenge will normally not be sufficient to amount to persecution for a Convention reason, the Full Federal Court stated in MIMA v Abdi [1999] FCA 299; (1999) 87 FCR 280 at [44]:

Fear of revenge, without more, will normally not be sufficient to amount to persecution for a Convention reason. For example, a fear of revenge for the killing of a member of another group will usually not be sufficient unless it can be shown that the retaliation is linked with a racial, religious or other Convention reason. Of course, if it can be shown to be related to such a purpose then the fear of revenge may well come within the definition.

135. The Tribunal is mindful of the High Court decision of MIMA v Singh [2002] HCA 7; (2002) 209 CLR 533 where the Court held that a Tribunal had erred in drawing the conclusions it did solely from the characterisation of the applicant’s crime as ‘an act of revenge’. Justice Kirby said (at [136]):

By accepting an erroneous dichotomy between crimes of revenge and “political crimes”, the Tribunal misunderstood the legal criterion which it was obliged to apply. The misunderstanding was highly material to the respondent’s case because it excluded from consideration, erroneously, acts which might be both political and motivated by an element of vengeance (original emphasis).

136. Again, in SHKB v MIMIA [2004] FCA 545 (Selway J, 5 May 2004), the Federal Court held that the Tribunal had erroneously drawn a dichotomy between Convention grounds and acts of retribution. The applicant had claimed a fear of persecution from Zulus who were angry that coloured families, such as his own, had taken their land from them. The Tribunal found that the reason why persons wished to injure him was to seek retribution for a person who had been killed at the applicant’s farm. The Court held that even if the threat was personal to the applicant and even if the persons making it were actuated by the desire for retribution, that did not preclude a conclusion that the threat was “for reason of race”, as the applicant had claimed 9 SHKB v MIMIA [2004] FCA 545 (Selway J, 5 May 2004) not disturbed on appeal: SHKB v MIMIA [2005] FCAFC 11 (Cooper, Marshall & Mansfield JJ, 18 February 2005)).
137. The Tribunal is willing to accept that the heightened communal tensions in Gujarat may have led the four men to use the applicant’s religion and/or his political opinion as a means to justify his or their own behaviour in the circumstances. The Tribunal is of the view that any threats that were made by the four men were significantly and essentially motivated by feelings of personal revenge for the applicant’s role in the termination of their employment; and that personal revenge and anger were therefore the essential and significant reasons for the threats. The applicant’s religion and/or his affiliation with the Congress Party may have been referred to in order to insult the applicant, harass him verbally or as a means for the four men to attract the interest of those who they felt might assist them, but these were not the reasons why the four men were seeking to intimidate the applicant and exact revenge on him. Accordingly, the Tribunal finds that the desire for personal revenge, not the applicant’s religion or political opinion, whether considered individually or cumulatively, was the significant and essential reason for any such threats that were made. Therefore, the requirement of s.91R(1)(a) has not been met.
138. The applicant also claims that his children faced harassment at school and are required to remain absent from school when there are any tensions between Hindus and Muslims. He writes that he enrolled his children in good schools in order to avoid such confrontations despite the high school fees. The fact that his children are enrolled in very good, private schools indicates to the Tribunal that the applicant is a successful man in India, who has no fear that he or his family are being threatened with serious harm. The Tribunal accepts that his children may be teased at school for reasons of their religion but the Tribunal does not find teasing amounts to serious harm. Given the manner in which the applicant has exaggerated his other claims, the Tribunal is satisfied that he has also exaggerated the claims that his children are forced to sit on a separate bench to other students or that they are otherwise treated in an intentional and discriminatory manner by the staff of what the applicant contends are reputable schools.
139. Finally, the applicant claims that his fear is also:

... based on Muslim with political involvement such as I am regarded as a Muslim sympathisers and Congress party members opposed by the BJP government faced real persecution and human right abuses by the government authority and radicals Hindu.

140. According to USDOS in 2010, the BJP and the RSS publicly “claimed to respect and tolerate other religious groups”. Despite this, the RSS opposed “coerced conversions” from Hinduism, and believed that all Indian citizens, irrespective of their religious affiliation, should adhere to Hindu cultural values, which the RSS considered to be synonymous with the country’s values. The BJP, however, did not actively seek anti-conversion laws, a uniform civil code, or advocate for the construction of a Hindu temple on the Ayodhya site during 2010 (US Department of State 2010, International Religious Freedom Report for 2010 – India, 17 November, Section II).
141. In 2009, Minority Rights Group International noted that Muslims, Christians and other religious minorities in India faced numerous instances of abuse and attacks, which were linked to “a worrying rise in Hindu nationalism” For example, in June 2009, 40 people were injured in West Bengal as a result of clashes between RSS supporters and local Muslim villagers over the RSS setting up a camp in the region (Minority Rights Group International 2009, State of the World’s Minorities and Indigenous People 2009 – India, 16 July).
142. Much of the information available concerns RSS and BJP attacks against Indian Christians rather than Muslims (see, for example, US Department of State 2010, International Religious Freedom Report for 2010 – India, 17 November, Section III).
143. According to the US Commission on International Religious Freedom (USCIRF) in 2010, “India’s democratic institutions charged with upholding the rule of law, most notably state and central judiciaries and police, lack capacity to execute those functions and have emerged as unwilling or unable consistently to seek redress for victims of religiously-motivated violence or to challenge cultures of impunity in areas with a history of communal tensions” This was particularly evident following the 2002 Gujarat riots, where India’s National Human Rights Commission (NHRC) found evidence of premeditation in the killings by Hindu nationalist group members, complicity by Gujarat state government officials, and police inaction regarding the attacks on Muslims. Court convictions of alleged perpetrators have been scarce, in part due to insufficient efforts by local police. USCIRF claim that as there were many eyewitnesses to the attacks, the low number of convictions suggests “endemic impediments to justice continue to exist within the police, the judiciary, and the state government apparatus” 9 US Commission on International Religious Freedom 2010, US Commission on International Religious Freedom Annual Report for 2010 – India, 30 April). According to Freedom House, a number of human rights groups have alleged that the BJP-led Gujarat state government instructed police not to intervene during the 2002 communal violence, and that police have since been reluctant to register complaints or arrest those accused of serious crimes during the rioting (Freedom House 2010, Freedom in the World Country Report for 2010 – India, 24 June). Minority Rights Group International (MRG) also note in 2009 that the response of state governments and law enforcement officials to attacks on Muslims and Christians was limited and slow (Minority Rights Group International 2009, State of the World’s Minorities and Indigenous People 2009 – India, 16 July). USCIRF claim that “India’s central and state police and judicial apparatuses have neglected to examine consistently or adequately the evidence linking...the BHP, RSS, BJP, and Bajrang Dal to acts of violence” (US Commission on International Religious Freedom 2010, US Commission on International Religious Freedom Annual Report for 2010 – India, 30 April).
144. On the basis of the above country information, the Tribunal accepts that there are ongoing violent clashes between Hindus and other religious groups and those clashes between Christians and Hindus are particularly prevalent in the states of Orissa and Gujarat Nonetheless, the country information indicates that regardless of which religion a person holds, state and central judiciaries and police, lack capacity to execute those functions and has emerged as unwilling or unable consistently to seek redress for victims of religiously-motivated violence or to challenge cultures of impunity in areas with a history of communal tensions.
145. Be that as it may, the particular circumstances of the applicant do not, in the Tribunal’s view, support the applicant’s claim that if he returns to India now or in the reasonably foreseeable future, he has a well-founded fear of persecution. The Tribunal has taken into account the fact that despite the massive upheaval caused to thousands of people by communal riots over the past thirty years in Gujarat, the applicant has pursued a successful career and has held professional positions up until his departure from India. In addition, he has continued to live in Gujarat and participate actively as a senior and well respect community representative and campaigner with the National Congress Party. His children have attended reputable, private schools. Apart from a period of time in his childhood when his family resided with friends, he has not been displaced; and he has never been forced to live in a camp of displaced people. Further, the Tribunal finds on the basis of the applicant’s claims and evidence that he is not a religious cleric of any kind; although the Tribunal acknowledges that he is reputed as a leader of the local, Muslim community.
146. Having considered the evidence overall, the Tribunal finds that the applicant does not face a real chance of being persecuted if he returns to India now or in the reasonably foreseeable future. The Tribunal has given significant weight to its findings that the applicant has not suffered past persecution as an individual for reasons of his religion or his political opinion. The Tribunal accepts that the applicant would have had a well-founded fear of persecution as a Muslim during those periods of time when he was in an area directly affected by communal riots. However, the Tribunal finds that past persecution of that kind, does not translate into a real chance of persecution now or in the reasonably foreseeable future in this case. That being said, the Tribunal has considered the country information on communal tensions in Gujarat before it and accepts that further communal riots are likely to take place in Gujarat in the foreseeable future. However, the Tribunal can do no more than speculate about whether the applicant would find himself in the midst of such a riot and then speculate further as to whether he would also suffer serious harm as a result for reasons of his political opinion or his religion or both cumulatively.
147. In Chan v MIEA Mason CJ observed that various expressions have been used in other jurisdictions to describe “well-founded fear” – “a reasonable degree of likelihood”, “a real and substantial risk”, “a reasonable possibility” and “a real chance”. His Honour saw no significant difference in these expressions, but preferred the expression “a real chance” because it conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it was an expression that had been explained and applied in Australia: Chan v MIEA (1989) 169 CLR 379 at 389. With that guidance in mind, and the speculative nature of the claims, the Tribunal finds that the applicant does not face a real chance of persecution now or in the reasonably foreseeable future if he returns to Gujarat, India.
148. Even if the Tribunal is wrong in that finding, the Tribunal finds on the basis of country information before it that the applicant and his family could relocate to another state in India such as a metropolitan centre such as New Delhi or Calcutta. Indian law provide for freedom of movement within the country, and the government generally respects this in practice. In late 2010, the government repealed the requirement for nationals and foreigners, apart from Pakistani and Chinese nationals, to apply for special permits to travel to Manipur, Mizoram and Nagaland. Such permits, however, are still required to travel to Jammu and Kashmir (US Department of State 2011, Country Reports on Human Rights Practices for 2010 – India, April, Section 2.d). According to the UK Home Office, there are no checks on a newcomer to any part of India arriving from another part of India; local police have neither the resources nor the language abilities to undertake background checks on individuals relocating within India (UK Home Office 2010, Country of Origin Information Report – India, 21 September, Section 20). In this case, the applicant’s fear of persecution does not lie with the central authorities. The applicant’s fear is of local people in Gujarat and local police or communal riots: see: UK Home Office 2008, Operational Guidance Note – India, April, Section 3.6.10.
149. The Tribunal has considered the applicant’s claims that political organisations opposed to him could track him down because he is a Gujarati Muslim and that people will therefore pay more attention to him. The Tribunal does not accept that an Indian national living in a cosmopolitan area of India will stand out in a remarkable way. The applicant added that he is also unable to relocate because of language. The Tribunal does not accept this claim as he admitted in his application form that he speaks, reads, and writes Hindi as well as Gujarati. Moreover, the Tribunal has taken into account the fact that he is a well-educated professional man, who has relocated within Gujarat for professional reasons previously. The Tribunal finds that it is reasonable to find that he can do so again.

The second named applicant

150. The claims of the second named applicant are based on the claims that she has a well-founded fear of persecution in her own right now or in the reasonably foreseeable future if he returns to India. Alternatively, she claims that she is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i) and that her application depends on the outcome of the first named applicant’s application.
151. In terms of the first alternative, the Tribunal has had regard to the claims of the second named applicant that as a result of her husband’s conduct at [Employer 3] in 2008, and for reasons of his religion and political opinion, she herself has been subjected to serious harm in the past and has a well-founded fear of persecution in the reasonably foreseeable future if she returns to India. In particular, she claims that the same people, who had threatened her husband, began bothering her during her husband’s second trip to Australia. She said that they threatened to kidnap her children and they tried to physically abuse her.
152. The Tribunal notes that the second named applicant was not able to present her claims in any detail. Overall, the Tribunal is of the view that her claims are exaggerated and unreliable. If the applicant had given evidence that these people had come to her door and threatened her in her own home or numerous occasions, it would have been reasonable to expect that she could not remember exactly how many times these threats took place. As it was, the applicant was only threatened at her home two or three times and the applicant could not definitely tell the Tribunal the answer. When asked to clarify the number of times she had been threatened, she said it might have been three or four times but she could not remember clearly.
153. The Tribunal asked her on which occasions she was actually physically harmed. She answered that she was physically harmed two to three times. The Tribunal asked her how she was harmed and she answered that they did not “do the ultimate thing”; she said they hit her on her face and her back. She added that there were three or four men but she did not remember clearly. The Tribunal accepts that if the second named applicant was in fact physically abused, it is reasonable that she might not remember how many men appeared at her door. However, the Tribunal does not accept that after being physically abused once the second named applicant would continue to open her door to these men. The applicant claims that she lives in an apartment building and that they pushed open the door. The Tribunal accepts this may have occurred once but not more often.
154. The Tribunal finds that if there were people, who wished to take revenge on the first named applicant, they would have done so before the applicant had travelled to Australia. The Tribunal does not accept that they would have been so set on revenge that they would have made threats against the first named applicant’s wife and children in order to force him to return to India so that they could harm him directly.
155. On the basis of the Tribunal’s disbelief of the claims and evidence of both the first named applicant and the second named applicant discussed above, the Tribunal finds that the second named applicant does not face a real chance of persecution now or in the reasonably foreseeable future if she returns to India.

The third named applicant

156. The Tribunal is satisfied that the third named applicant is the child of the first named applicant. Accordingly, the Tribunal finds that they are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). To that extent, their application depends on the outcome of the first named applicant’s application.
157. Since the Tribunal finds that the first named applicant is not a person to whom Australia has protection obligations under the Refugees Convention; and he does not therefore satisfy the criterion set out in s.36(2)(a) for a protection visa and is not entitled to such a visa, it follows that the children are also not entitled to a protection visa on that basis.
158. The Tribunal is not limited to considering the basis on which the claims were made in the protection visa application. Thus, a person originally claiming the visa on the basis of family membership may nevertheless, in light of subsequent claims and evidence, meet the alternate criterion at time of decision, that they are a person to whom Australia has protection obligations under the Refugees Convention.
159. In this case, the first and second named applicants both made claims on behalf of their son that he has a well-founded fear of persecution for reasons of his religion and his father’s political opinion.
160. In terms of his religion, the first named applicant claims that his son had to miss school for eight to ten days because he was teased. The first named applicant also gave evidence at the Tribunal hearing that his son was prohibited from school functions because of his religion and forced to sit on the last bench. He also claimed that his son was pushed and injured at school because he is Muslim. He also claims that as soon as he arrived in Australia, people started to threaten his wife by saying they would kidnap his son if the first named applicant did not return to India.
161. The Tribunal finds on the basis of the exaggerated nature of the first named applicant’s claims and evidence overall, that the claims concerning discrimination and harassment directed at his son have also been exaggerated. The Tribunal is satisfied that the third named applicant may have been subjected to teasing and discrimination by fellow Hindu students given the communal tensions existing in Gujarat. However, that kind of discrimination does not amount to “serious harm” under s.91R(1)(b) of the Act. That section provides:

For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
...
(b) the persecution involves serious harm to the person ...
...

162. Subsection (2) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. It lists the following as instances of “serious harm”:

(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

163. These examples all involve physical harm or economic hardship. They do not refer to teasing or even school bullying of the kind described by the first named applicant. The Tribunal acknowledges that the Revised Explanatory Memorandum (EM) to the legislation that introduced s.91R emphasises that the list is not exhaustive. The EM notes that the serious harm test does not exclude serious mental harm, such as harm caused by the conducting of mock executions, or threats to the life of people very closely associated with the person seeking protection (Revised Explanatory Memorandum to Migration Legislation Amendment Bill (No.6) 2001 at [25]). Again, however, the Tribunal finds that the kind of discrimination being referred to by the first named applicant in this case in relation to his son’s own fear of persecution does not amount to serious harm of a nature intended by Parliament and set out in s.91R.
164. The Tribunal has also considered the claims made in relation to the third named applicant possessing a well-founded fear of persecution for reasons of his father’s political opinion. In particular, the Tribunal has considered the claim that threats were made to kidnap the third named applicant in the past, and that he would continue to be subjected to the risk of harm if he returns to India.
165. As the Tribunal has found that the father’s claims are not well founded, the Tribunal finds that the son’s claims are also unfounded in so far as they are based on his father’s claims that he faces a well-founded fear of persecution if he returns to India.
166. On the basis of the above, the Tribunal finds that the third named applicant does not face a real chance of persecution now or in the reasonably foreseeable future if he returns to India.

The fourth named applicant

167. The Tribunal is satisfied that the fourth named applicant is the child of the first named applicant. Accordingly, the Tribunal finds that they are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, their application to that extent depends on the outcome of the first named applicant’s application.
168. Since the Tribunal finds that the first named applicant is not a person to whom Australia has protection obligations under the Refugees Convention; and he does not therefore satisfy the criterion set out in s.36(2)(a) for a protection visa and is not entitled to such a visa, it follows that the children are also not entitled to a protection visa on that basis.
169. Further, the Tribunal finds that the fourth named applicant is not a person to whom Australia has protection obligations under the Refugees Convention. The Tribunal acknowledges on the basis of the claims and evidence of her parents on her behalf that she may be subjected to teasing and harassment for reasons of her religion but the Tribunal does not find that the persecution she fears amount to serious harm.
170. For reasons explained above, the Tribunal finds that any claim that she will be kidnapped because of her father’s political opinion is unreliable and exaggerated. Accordingly, the Tribunal finds that the fourth named applicant’s claims are unreliable for the same reasons and in so far as they are based on her father’s claims that he faces a well-founded fear of persecution if he returns to India.
171. On the basis of the above, the Tribunal finds that the fourth named applicant does not face a real chance of persecution now or in the reasonably foreseeable future if she returns to India.

CONCLUSIONS

The Tribunal is not satisfied that any of the applicants is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

172. The Tribunal affirms the decisions not to grant the applicants Protection (Class XA) visas.