(Cth) Remove the Mandatory Adverse Credibility Finding Against Asylum Seekers
Author: Alexis Nguyen, Georgia Riessen, Lucy Leutchford, Miya Latham & Scout Salathiel | Publish date: 21/9/2026
P: In Australia, the Administrative Review Tribunal (ART) must draw an ‘inference unfavourable to the credibility’ of a person seeking asylum if they raise new evidence on review.
S: The Minister for Immigration and Citizenship should repeal Section 367A of the Migration Act 1958 (Cth) to omit the mandatory ‘inference unfavourable to the credibility’ of a person seeking asylum who raises new evidence on review.
E Refugee Advice and Casework Service (2026): ‘Recommendation 12: Remove section 367A of the Migration Act.’
Problem Identification:
Section 367A of the Migration Act 1958 (Cth) requires the Administrative Review Tribunal (ART) to ‘draw an inference unfavourable to the credibility of the claim or evidence’ for asylum seeker applicants. This happens when the applicant for protection presents evidence that was ‘not presented before the primary decision was made’ and the ART ‘is satisfied that the applicant does not have a reasonable explanation’.
According to the United Nations High Commissioner for Refugees (UNHCR), this provision ‘undermines the integrity and neutrality of the decision-making process’. The Refugee Advice & Casework Service (RACS) stated that this ‘presumes that applicants for protection are in a position to raise the full extent of their claims in the first instance.’
Context:
The UNHCR defined an asylum seeker as ‘someone who is seeking international protection [but] their request for refugee status, or complementary protection status, has yet to be processed’.
In Australia, people seeking asylum may obtain a protection visa under Section 36 of the Migration Act 1958 (Cth), either by satisfying the refugee definition or by being found to be owed complementary protection. Complementary protection is defined as ‘a person: [who] is not found to be a refugee under the Refugee Convention; but cannot be returned to their country of origin because there is a real risk that they will face significant harm there.’
The ART’s role is to review decisions made ‘by an Australian Government department, minister, or agency,’ including visa decisions. In their reviews, the ART must ‘consider any new information.’
Arguments:
The Asylum Seeker Resource Centre (ASRC) argued that there are ‘valid reasons for a delay in providing updated evidence and claims’ in asylum seeker cases. RACS found that ‘trauma, particularly of the kind experienced by people seeking asylum, often leads to memory loss’. RACS further submitted that poor psychological health ‘can explain … lack of detail, incoherence or gaps in an applicant’s retelling of an event.’ Trish Luker, Adjunct Associate Professor, University of Technology Sydney (UTS) Faculty of Law, stated that asylum seeker narratives ‘may alter each time they are delivered,’ undermining credibility.
RACS stated that ‘the nebulous definition of what constituted a “reasonable explanation” has led to inconsistent decision-making between [tribunal] Members.’ Douglas McDonald-Norman, a UTS Faculty of Law lecturer, stated that ‘exercising discretion as to credibility’ is ‘a form of fact-finding notoriously open to “personal judgement that is inconsistent from one adjudicator to the next”.’ ASRC highlighted that ‘legislation does not provide any guidance regarding what would suffice as a “reasonable explanation”’. They also found that ‘issues of inconsistencies and vagueness … may adversely affect the way their evidence is assessed.’ According to the Kaldor Centre for International Refugee Law (KCIRL), ‘almost half (… 18 tribunal members) made decisions that were significantly inconsistent with those of the average tribunal member,’ in protection visa decisions.
The House of Representatives Explanatory Memorandum stated that section 367A was ‘intended to ensure that applicants raise all claims relevant to their visa application, and present all evidence, upfront, to ensure that the decision made … can be as efficient and effective as possible.’ However, KCIRL emphasised that ‘the increased codification of procedures in the [Migration and Refugee Division] has not increased efficiency or fairness … [and] in practice, this approach … may actively be contributing to both inefficiencies and unfairness for applicants.’
Advice/Solution Identification:
RACS, UNHCR, ASRC, and KCIRL have called for the removal of section 367A of the Migration Act. RACS has stated that this could ‘safeguard against a Member seeking to draw an adverse inference as to evidence that it should be [taken] into account as credible and relevant for a protection assessment.’
Precedent:
There is domestic precedent for a delay in evidence not undermining credibility. In NSW, the Criminal Trial Courts Bench Book s 294(1) requires that when evidence is delayed, the ‘direction must not extend to directing that delay is relevant to the complainant's credibility’.
Public Support of the Solution:
(This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.)
Broad Support
Australian Council of Trade Unions (ACTU) - They have called for a ‘fair, efficient and just refugee status determination process.’ However, they have not explicitly called for removing section 367A of the Migration Act 1958 (Cth).
News Coverage:
SBS News - “One million permanent humanitarian visas: Calls for change as milestone nears”. This article highlighted calls for change to Australia’s approach to humanitarian visas and asylum seekers while Australia celebrated issuing its one millionth permanent visa through its refugee and humanitarian program. By: Angelica Waite | 9 November 2025 - Read the article here.
The Leader - “'Black box' hearings prejudice refugee claims: research”. This article discussed a Myanmar refugee who was interrogated at an Australian tribunal hearing into her protection claim about why she used the toilet before fleeing soldiers. By: Farid Farid | 2 April 2024 - Read the article here.
ABC News - “New data reveals decisions about an asylum seeker's visa can vary depending on which judge they get”. This article discussed the results of a KCIRL study and determined that ‘decisions about protection visas in Australia's courts and tribunals vary greatly based on factors including which judge or tribunal member is deciding the case.’ By: Daniel Ghezelbash and Keyvan Dorostkar | 4 August 2022 - Read the article here.
The Conversation - “How refugees succeeded in visa reviews: new research reveals the factors that matter”. Discussed how the outcome of protection visa reviews can be influenced by the individual tribunal member and the country the refugee came from. By: Daniel Ghezelbash | 10 March 2020 - Read the article here.
Australian Human Rights Commission - “Court finds asylum seekers entitled to fair process”. This article discussed how asylum seekers who missed the deadline to apply for protection visas were still entitled to a fair assessment of their claims, as the court accepted that internal processes should have provided them with procedural fairness. By: Australian Human Rights Commission | October 2019 - Read the Article here.
Where to go to learn more:
(2026) Submission to the Administrative Review Council Inquiry on Migration | Refugee Advice and Casework Service - This submission discussed flaws of Australia’s migration and refugee decision-making process and proposed recommendations to make the system fairer. This included ‘remov[ing] section 367A of the Migration Act.’ Read the submission here.
(2024) Letter to the Parliamentary Inquiry into Administrative Review Tribunal Administration : Submission 18 | UNHCR - This letter discussed the insufficiency of the Administrative Review Tribunal in providing procedural fairness to refugees. With regard to section 367A, it ‘strongly recommend[ed] that this… be removed from the legislation, as it is unnecessary, undermines the integrity and neutrality of the decision-making process, and has the potential to compromise fairness.’ Read the full letter here.
(2009) A Case for Justice - Position Paper on the Legal Process of Seeking Asylum in Australia | Maria Psihogios-Billington, The Asylum Seeker Resource Centre - This paper provided an outline of the refugee determination system and processes to uphold Australia’s international obligations to asylum seekers. Read the full paper here.
(2024) A Guide to Refugee Law in Australia, Chapter 12 – Merits review of protection related decisions | Administrative Review Tribunal - This guide outlined the jurisdiction of the Tribunal in reviewing decisions about protection visas, including decisions made under section 367A. Read the full chapter here.
(1999) Abebe v The Commonwealth of Australia - This High Court case considered an Ethiopian asylum seeker whose claim of persecution, including rape in detention, was rejected by the RRT partly because she had not disclosed the sexual assault upon arrival in Australia, raising issues about delayed disclosure and credibility assessments. Read the full court case here.
Migration Act 1958 (Cth) - Read the full Act here.
Human Perspective:
CW: sexual assault and explicit mentions of rape, refugee and asylum trauma.
When Amina arrived in Australia to seek protection, she spoke about the threats she faced in her home country but said nothing about being raped while fleeing. During her first interview, she was questioned by government officials only days after arriving. Having spent years fearing authorities, she answered only what she believed she had to, and avoided describing the assault. She felt the overwhelming shame and feared that disclosing it would change how she was viewed or place her family in danger if the information reached home. Several months later, after meeting regularly with a counsellor and receiving legal assistance, Amina disclosed the assault. Rather than being recognised as a survivor who needed time to speak about a deeply traumatic experience, the late disclosure risked being viewed as damaging to her credibility because it had not been raised at the earliest opportunity. Amina is currently facing court for her claim of asylum. If her account is found not to be credible because she brought up information later on, her protection claim may be refused, leaving her at risk of being returned to the country she fled.
To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.
Conflict of interest/acknowledgment statement:
N/A.
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Reference list:
Abebe v The Commonwealth [1999] HCA 14. https://www.hcourt.gov.au/sites/default/files/eresources/2025-10-30/HCA/Abebe%20v%20The%20Commonwealth%20%28S53-1998%29%20%5B1999%5D%20HCA%2014.pdf
Administrative Review Tribunal. (2024). A Guide to Refugee Law in Australia, Chapter 12 – Merits review of protection related decisions. https://www.art.gov.au/sites/default/files/2024-11/Guide_to_Refugee_Law_in_Australia_Chapter_12.pdf
Administrative Review Tribunal (n.d) Our role. https://www.art.gov.au/about-us/our-role
Asylum Seeker Resource Centre (2024) Senate Legal and Constitutional Affairs Committee Inquiry Administrative Review Tribunal Bill 2023 & related bills. https://asrc.org.au/wp-content/uploads/2024/03/ASRC-Administrative-Review-Tribunal-Bills-SLCAC-Inquiry.pdf
Asylum Seeker Resource Centre. (2021). Human Rights Law Program Infosheet: Complementary Protection. https://asrc.org.au/wp-content/uploads/2021/08/HRLP-Infosheet-Complementary-Protection.pdf
Australian Council of Trade Unions. (n.d) Asylum Seekers and Refugees - A rights Based Approach. https://www.actu.org.au/wp-content/uploads/2023/12/Congress24_Asylum-Seekers-and-Refugees-A-Rights-Based-Approach.pdf
Australian Human Rights Commission. (2019). Court finds asylum seekers entitled to fair process. https://humanrights.gov.au/about-us/media-centre/media-releases/asylum-seekers-and-refugees/court-finds-asylum-seekers-entitled-fair-process
Department of Home Affairs. (2026). Subclass 866 Protection visa. Australian Government. https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/protection-866.
Explanatory Memorandum, Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (Cth). https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r7127_ems_1d8912c9-03f6-4f29-a361-d54ee4a16380/upload_pdf/JC011641.pdf;fileType=application%2Fpdf
Farid, F. (2024, April 2). 'Black box' hearings prejudice refugee claims: research. St George & Sutherland Shire Leader. https://www.theleader.com.au/story/8577876/black-box-hearings-prejudice-refugee-claims-research/
Ghezelbash, D & Dorostkar, K. (2022, April 4). New data reveals decisions about an asylum seeker's visa can vary depending on which judge they get. ABC News. https://www.abc.net.au/news/2022-08-04/law-report-is-there-bias-in-judgments-of-asylum-seekers-visas/101291192
Ghezelbash, D., Bridle, M., Dorostkar, K. (2024, March 20). The Administrative Review Tribunal Bill: A missed opportunity for ending migration exceptionalism and creating a unified approach for administrative review. Australian Public Law. https://www.auspublaw.org/blog/2024/3/the-administrative-review-tribunal-bill-a-missed-opportunity-for-ending-migration-exceptionalism-and-creating-a-unified-approach-for-administrative-review
Ghezelbash, D. (2020, March 10). How refugees succeed in visa reviews: new research reveals the factors that matter. The Conversation. https://theconversation.com/how-refugees-succeed-in-visa-reviews-new-research-reveals-the-factors-that-matter-131763
Judicial Commission of New South Wales. (2026). Criminal trial courts bench book: Complaint Evidence. https://www.judcom.nsw.gov.au/publications/benchbks/criminal/complaint_evidence.html
Kaldor Centre Data Lab, Andrew & Renata Kaldor Centre for International Refugee Law, and UNSW, Sydney. (2024). Submission to the Inquiry into the Administrative Review Tribunal Bill 2023 (ART Bill) and the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 (Consequential and Transitional Bill). https://www.unsw.edu.au/content/dam/pdfs/law/kaldor/resources/2024-03-submissions/2024-01-sub011-kaldor-centre-data-lab-2023-art-bill-and-2023-consequential-and-transitional-bill.pdf
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Migration Act 1958 (Cth). https://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s367a.html
Psihogios-Billington, M. (2009). A Case for Justice, Position Paper on the Legal Process of Seeking Asylum in Australia. Asylum Seeker Resource Centre. https://www.asrc.org.au/pdf/case-justice.pdf
Refugee Advice and Casework Service. (2026) Submission to the Administrative Review Council Inquiry on Migration. https://consultations.ag.gov.au/legal-system/arc-inquiry-on-migration/consultation/view_respondent?uuId=825053857
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Waite, A. (2025, November 9). One million permanent humanitarian visas: Calls for change as milestone nears. SBS News. https://www.sbs.com.au/news/article/australia-one-million-refugees/bhi7f43ml
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