1701817 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Protection visa. The applicant, an Indian national, arrived in Australia in May 2009 and applied for a Protection visa approximately five and a half years later, in September 2015. The delegate of the Minister for Immigration refused the visa on 6 January 2017, finding that the applicant did not meet the criteria for refugee or complementary protection. The applicant sought review of this decision by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a Protection visa under section 36(2)(a) (refugee criteria) or section 36(2)(aa) (complementary protection criteria) of the Act. The Tribunal was also required to consider the availability of effective state protection in India for the applicant, as per section 5LA of the Act, and to assess the applicant's credibility, particularly in light of any new claims or evidence presented after the primary decision.

The Tribunal applied the principles that it is the applicant's responsibility to specify all particulars of their claim and provide sufficient evidence, and that claims and evidence should generally be presented to the primary decision-maker. Section 423A of the Act requires the Tribunal to draw an adverse inference about credibility if new claims or evidence are raised without a reasonable explanation. The Tribunal noted that it must give the benefit of the doubt on questions of credit but is not bound by any rule requiring a positive state of disbelief before making adverse credibility assessments. The Tribunal also considered the principle that if an applicant does not subjectively hold a genuine fear of persecution, there is no need to consider the objective basis of the claim.

The Tribunal affirmed the decision under review.