1705932 (Refugee)

The Administrative Appeals Tribunal reviewed decisions of a delegate of the Minister for Immigration to refuse protection visas to Applicant X and Applicant Y. Both applicants, who are citizens of Malaysia and married to each other, arrived in Australia in September 2016 and applied for protection visas in December 2016. The delegate's decisions, dated 24 March 2017, found that neither applicant should be granted a protection visa. The Tribunal conducted concurrent hearings for both applicants, who were unrepresented and assisted by an interpreter.

The primary legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36 of the Act and Schedule 2 of the Migration Regulations 1994, and crucially, the assessment of their credibility. This involved determining if the applicants subjectively held a genuine fear of persecution and whether they had provided sufficient evidence to establish their claims. The Tribunal was also required to consider the applicants' obligation to present their case in full before the primary decision-maker and the implications of raising new claims or evidence before the Tribunal, particularly in light of section 423A of the Act, which mandates drawing an adverse inference where claims or evidence not previously presented are introduced without a reasonable explanation.

The Tribunal affirmed the delegate's decisions. In its reasoning, the Tribunal emphasised that applicants bear the responsibility to specify all particulars of their claim and provide sufficient evidence, and that the Tribunal is not obligated to assist in establishing a claim. It reiterated the well-settled principle that applicants must present their case in full to the primary decision-maker and not delay presenting claims or evidence until a later stage, unless a reasonable explanation is provided. The Tribunal noted that section 423A of the Act requires an adverse inference to be drawn regarding credibility if new claims or evidence are introduced without a reasonable explanation for their prior omission. The Tribunal found that the applicants had not provided a reasonable explanation for any claims or evidence not presented to the primary decision-maker, leading to an adverse inference against their credibility. Consequently, the Tribunal affirmed the delegate's decision to refuse the protection visas.