The Tribunal's Decision
6 The Tribunal found the appellant was unable to describe his fears regarding his safety if his sexuality were revealed to the community; that he gave different evidence in his protection visa and hearing as to the extent of police protection; and that he did not make his own enquiries as to living elsewhere in India.
7 The Tribunal also noted the appellant did not respond to the Tribunal's letter of 1 February 2007. Consequently it found that:
"…the review applicant's inability to provide details of his claims and his lack of understanding of the situation affecting homosexual men in India generally, or his own community in particular, adversely affects the credibility of his claim to have been a practising homosexual in that country eight years prior to his arrival in Australia in September 2006."
8 The Tribunal also noted that the there were limited adverse consequences felt by the appellant's former teacher when his sexuality was revealed and the appellant did not appear familiar or concerned with any adverse consequences to his former teacher in the wider community. Consequently, the Tribunal was not satisfied the appellant was a practising homosexual or was involved in a long-term homosexual relationship with his former teacher.
9 The Tribunal accepted that the revelation that the appellant was a homosexual and a failed arranged marriage would bring shame. However, it found the appellant had not provided evidence to explain why his family would take the extreme step of arranging for him to be killed. It noted the appellant was unaware of the potential for serious harm to persons who were known practising homosexuals by the community or the police and found it difficult to understand why he would have formed such an extreme view of the situation.
10 The Tribunal also noted that if it had found the appellant was a practising homosexual, then it would have found he was a member of a particular social group and that he might not have been able to obtain effective state protection in his local area. It noted, on the basis of independent country information, that there was a real chance homosexuals in many parts of India could be subject to serious harm. However, there were a number of larger cities and towns in India where homosexuality could be openly practised. The Tribunal found the likelihood of an openly homosexual person in Bombay or Bangalore being subject to serious harm was remote and thus there would not be a real chance of persecution. The Tribunal found, if the appellant were a homosexual man, that he could relocate and that it would be reasonable.