1703107 (Refugee)

The applicant, a citizen of Malaysia, sought review of a delegate's decision to refuse him a Protection visa. The applicant arrived in Australia on a visitor's visa in July 2016 and applied for protection shortly thereafter. He appeared before the Tribunal on two occasions in 2019. The Tribunal found the applicant to be a citizen of Malaysia, which was also considered his receiving country for the purposes of the assessment.

The legal issues before the Tribunal included whether the applicant met the criteria for a Protection visa, either on refugee or complementary protection grounds. This required an assessment of the applicant's claims, the credibility of his evidence, and whether he held a genuine fear of persecution. The Tribunal was also required to consider the applicant's responsibility to present all claims and evidence to the primary decision-maker and the implications of failing to do so without a reasonable explanation, particularly in light of sections 5AAA and 423A of the Act.

The Tribunal's reasoning focused on the applicant's responsibility to establish his case and present all relevant information to the primary decision-maker. It noted that the applicant had confirmed a summary of his claims, which indicated he left Malaysia due to political and economic issues, failed to find employment, and would be unable to support himself and his family upon return. The Tribunal also considered country information regarding Malaysia and the treatment of returnees. Crucially, the Tribunal applied the principle that where an applicant raises claims or evidence not previously presented to the primary decision-maker without a reasonable explanation, an adverse inference regarding credibility must be drawn. The Tribunal found that the applicant had not provided a reasonable explanation for not presenting all claims and evidence earlier, leading to adverse credibility findings.

The Tribunal affirmed the delegate's decision under review, meaning the applicant was not granted a Protection visa.