1833105 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse the grant of protection visas to four applicants, who claimed to be citizens of China. The delegate had refused the visas on the basis that the primary applicant's evidence of a well-founded fear of harm in China was variable and lacked credibility, thus not enlivening Australia's protection obligations under either the refugee criteria (s.36(2)(a) of the Act) or the complementary protection criteria (s.36(2)(aa) of the Act). The applicants sought review of this decision by the Tribunal.

The Tribunal was required to determine whether the applicants had established a well-founded fear of harm in China, thereby enlivening Australia's protection obligations. This involved assessing the credibility of the evidence presented by the applicants, particularly in light of the fact that they had been in Australia for a significant period and had raised claims and presented evidence that had not been put forward before the primary decision-maker. The Tribunal also considered its obligations under the Act and relevant President's Directions regarding the conduct of reviews and the applicant's responsibility to provide sufficient evidence.

The Tribunal found that the primary applicant's evidence was variable and lacked credibility, a finding consistent with the delegate's assessment. The Tribunal noted that it is the applicant's responsibility to specify all particulars of their claim and provide sufficient evidence, and that applicants are expected to present their case in full before the primary decision-maker. The Tribunal applied section 423A of the Act, which requires an adverse inference to be drawn about the credibility of a claim or evidence if it was not raised before the primary decision-maker and there is no reasonable explanation for the omission. Given the lack of credibility in the evidence and the failure to provide a reasonable explanation for the delayed presentation of claims, the Tribunal concluded that Australia's protection obligations were not enlivened.

The Tribunal affirmed the delegate's decision to refuse the grant of protection visas to the applicants.