C. The Tribunal's decision
7 The Tribunal provided methodical, detailed and comprehensive reasons for its decision. However, for present purposes, it is sufficient to set out the primary judge's summary of the Tribunal's reasoning (at J[4] to [11]):
[4] The Tribunal commenced its reasons by summarising the relevant background, the applicant's claims, and the evidence before it. It also observed that there was a s.438 Migration Act 1958 (Cth) (Migration Act) certificate before it, but that the certificate was not valid and that the documents covered by it were not relevant to the review.
[5] The Tribunal held concerns about the applicant's claims and evidence which "raise[d] serious doubts about his credibility". It was not satisfied that he gave a "full and frank" account of his activities in Kerala. The Tribunal found that his account of the harm he suffered from Hindu activists was "improvised ... and lacking credibility". The Tribunal also considered that the applicant's conduct and experiences after 2007 raised credibility concerns. The Tribunal explained that it had "significant doubts" about the truthfulness of the applicant's claims and his need for protection.
[6] The Tribunal did not accept that the applicant was involved in the 2005 flag incident, or that he or his family were subject to threats and violence as a result. It did not accept that the applicant was subject to threats or intimidation from Prasad, or other Hindus, from July 2004 to March 2007. It accepted that the applicant had been charged with inciting unrest in 2005, but found that he was acquitted in 2007 when the key witness stated that it was a case of mistaken identity.
[7] In light of credibility concerns it held about the applicant's claims, the Tribunal did not accept that Prasad had stopped the applicant shortly after his acquittal, physically harmed the applicant and had taken his passport and documents. It also did not accept that the applicant reported this incident to the police, or that Prasad caused the applicant difficulties before he left for Malaysia and South Korea. It further did not accept that the applicant travelled to Malaysia and South Korea in response to any genuine fear of harm. In relation to the applicant's claim to have been harmed in July 2008, the Tribunal did not accept that this had occurred, and did not accept that Prasad, or anyone connected to him, had an adverse interest in the applicant at this time.
[8] The Tribunal did not accept that, in May 2011, Hindu activists pulled the applicant and his brother over, assaulted them, and stole their passports. It did not accept that HI members broke the applicant's car windows in July 2011, or that his move to Mumbai, in 2012, was because he feared harm from HI in Kerala. It further did not accept that the applicant had been assaulted in Kerala in July 2014.
[9] The Tribunal summarised its findings at [99]-[103]. It explained that it had accepted the applicant's claim to be Muslim and to have faced criminal charges in 2007 for inciting unrest, but that it had concluded that the charges were a case of mistaken identity, with no further consequences. The Tribunal rejected all the applicant's other claims of past harm, and also did not accept that, since he had arrived in Australia, BJP party members in India had been looking for him.
[10] The Tribunal concluded that the applicant did not face a real chance of serious harm from his 2007 trial and acquittal. It also found that the applicant was not of any adverse interest to Prasad or Hindu activists, including after 2007. It accepted that the applicant may have suffered in the past some degree of discrimination as a Muslim in India but did not accept that this amounted to persecution.
[11] The Tribunal concluded that the applicant did not satisfy s.36(2)(a) of the Migration Act. In reliance on its earlier findings, the Tribunal also did not accept that the applicant met s.36(2)(aa) of the Migration Act. The Tribunal thus affirmed the delegate's decision.