1620062 (Refugee)

The applicant, a Malaysian national, sought review of a decision not to grant him a protection visa. The dispute centred on the applicant's claims of fear of persecution or significant harm upon return to Malaysia, which he initially based on being a gay man, but later shifted to threats from a supplier and debt collector related to his business. The Administrative Appeals Tribunal (AAT) was required to determine the credibility of the applicant's claims and whether he met the criteria for a protection visa under the Migration Act 1958 (Cth).

The Tribunal was tasked with assessing the applicant's credibility, particularly in light of his shifting claims and the provisions of section 423A of the Migration Act, which mandates drawing an adverse inference where new claims or evidence are presented without a reasonable explanation. The core legal issue was whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or alternatively, whether there were substantial grounds for believing he faced a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.

The Tribunal found that the applicant's initial claim of being a gay man fearing persecution was not credible, as he resiled from it at the hearing. While acknowledging the applicant's limited English and reliance on a friend to complete his application, the Tribunal did not consider this a reasonable explanation for presenting a false claim and omitting the purported real reasons for his fear. Consequently, the Tribunal drew an inference unfavourable to the credibility of his claims regarding persecution or significant harm stemming from his indebtedness. Despite this, the Tribunal found that the claims about his indebtedness were based on facts, at least in part. Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criteria under section 36(2) of the Act.