1906866 (Refugee)

[2024] AATA 3821

1906866 (Refugee) [2024] AATA 3821 (1 July 2024)

DECISION RECORD

DIVISION:	Migration & Refugee Division
REPRESENTATIVE:	Dr Annamalai Mahizhnan (MARN: 1803070)
CASE NUMBER:	1906866
COUNTRY OF REFERENCE:	Sri Lanka
MEMBER:	Fraser Robertson
DATE:	1 July 2024
PLACE OF DECISION:	Perth
DECISION:	The Tribunal remits the application for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.
Statement made on 01 July 2024 at 9:03am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – 2006 detention – lengthy absence from Sri Lanka – participation in the Tamil diaspora – proscribed organisation Australian Tamil Congress – social media activity critical if Sri Lankan government – involvement in protests and LTTE commemoration in Australia – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 46A(1), 65, 499

Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

   BACKGROUND

2. The applicant is [an age]-year-old Tamil male from Sri Lanka who arrived in Australia in March 2010 as an unauthorised maritime arrival. He applied for a Safe Haven Enterprise Visa ('SHEV') in September 2018, following the bar against further applications contained in s 46A(1) being lifted by the Minister.

3. The Department interviewed the applicant on 13 March 2019 regarding his application for a SHEV. I have listened to that interview and considered it when making this decision.

4. In support of his application for a SHEV, the applicant claimed, among other things:

   (a)his father and several relatives were killed by the Sri Lankan Army ('SLA'), and he would be suspected of seeking revenge if he returned to Sri Lanka;

   (b)his political activities and involvement in protests against the SLA in 2002 and 2005 led to his detention and being photographed by the army. He also claimed to have been abducted by armed men in a white van in 2006, resulting in his escape and the death of his friend. The applicant further claimed that he was detained and tortured in August 2006 and October 2008 on suspicion of involvement with the LTTE, as well as another abduction for ransom by the Karuna group in 2009;

   (c)he feared harm due to his Tamil ethnicity and previous adverse interactions with Sri Lankan authorities and armed groups. The applicant made claims about his experiences in Colombo as a Tamil man;

   (d)that his participation in activities in Australia, such as attending Martyrs Day functions and protests in Perth, had led to surveillance and potential adverse attention from the Sri Lankan authorities; and

   (e)the applicant also raised concerns about a data breach by the Department of Immigration, fearing it would lead to him being perceived as a terrorist.

5. On 18 March 2019, the delegate refused to grant the applicant a SHEV. In refusing to grant the applicant a protection visa, among other things, the delegate:

   (a)observed that the applicant had lived in Sri Lanka from [year] to 2009 without being suspected or accused of seeking revenge for his family’s deaths. This long period without incident undermined the credibility of this claim, leading to its rejection;

   (b)found inconsistencies in the applicant's accounts of his political activities and subsequent harm, noting discrepancies between his written statements and oral testimony. The delegate found that the claim of being detained and photographed by the army after the 2005 protest contradicted the applicant’s statements during the interview. The alleged escape from abduction in 2006 was deemed far-fetched, and the delegate concluded that the applicant was not specifically targeted. The claim of detention and torture in August 2006 was found to be part of a general sweep of young Tamils, not due to the applicant having any political profile. The claimed detention and torture in 2008 and the claimed kidnapping in 2009 were not found credible, with the delegate considering these fabrications or results of criminal activity rather than political persecution;

   (c)accepted that the applicant had been detained briefly in 2006 but concluded that the applicant was not subject to any ongoing risk profile or that there was substantial evidence of LTTE involvement. Specifically, the delegate did not accept that the applicant was a suspect in the October 2008 bomb blast or that he was detained in October 2008;

   (d)accepted that, as a Tamil, the applicant may be at risk of discrimination, yet the delegate found that the level of discrimination and harassment, if it were to occur, would not amount to serious harm;

   (e)found no credible evidence that the applicant’s activities in Australia had attracted adverse attention from Sri Lankan authorities, dismissing the claim as speculative. The delegate noted a lack of evidence of attendance at these events, and the suggestion that Sri Lankan intelligence agencies would be aware of his involvement was speculative;

   (f)found that the applicant was not affected by the data breach as he was not in immigration detention at the time, thereby rejecting this claim;

   (g)accepted that the applicant would be returning to Sri Lanka as a failed asylum seeker;

   (h)found that the applicant did not have a well-founded fear of persecution or face a real risk of significant harm upon return to Sri Lanka.

6. On that basis, the application for a protection visa was refused.

   Review application

7. The applicant has applied to the Tribunal for review of the delegate’s decision and provided a copy of the delegate's decision to the Tribunal. For the purposes of this review, the applicant was represented by a registered migration agent, Dr Mahizhnan.

8. The applicant appeared before the Tribunal on 24 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted in Tamil and English with the assistance of an interpreter.

9. Following the hearing, the applicant was granted seven days to provide any further evidence and submissions he wished to rely on. I have considered the material in the Department's file, the applicant's evidence at the hearing, and the evidence and submissions that have been provided to the Tribunal in connection with the review application in making this decision.

   RELEVANT LAW

10. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, either they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person who holds a protection visa of the same class.

    Refugee criterion

11. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the decision‑maker is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[1] A person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[2] Persecution must involve serious harm[3] and systematic and discriminatory conduct.[4]

    [1]        Migration Act 1958 (Cth), s 5H(1)(a).

    [2]        Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

    [3]        Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.

    [4]        Migration Act 1958 (Cth), s 5J(4)(c).

12. A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A "real chance" is a prospect that is not "remote" or "far‑fetched", it does not require a likelihood of persecution on the balance of probabilities.[6] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which appear in the attachment to this decision.

    [5]        Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

    [6]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.

    Complementary protection criterion

13. If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.[7] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[8] Circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.

    [7]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

    [8]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

    Mandatory considerations

14. As directed[9], I have had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the DFAT Country Information Report.

    [9]        See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.

    ANALYSIS, FINDINGS AND REASONS

15. The issue in this application is whether the applicant meets the refugee criterion for protection contained in s 36(2)(a), or the complementary protection criterion contained in s 36(2)(aa) of the Act.

16. In my view, it is not necessary to make findings of fact on every claim made by the applicant to determine this review application. For the reasons that follow, I have determined that the decision under review ought to be set aside and that the application be remitted with a direction that the applicant satisfies s 36(2)(a) of the Act.

    COUNTRY INFORMATION

17. DFAT reports that in-country Tamil sources have said that while the level of state harassment and mistreatment against Tamils has decreased significantly since 2015, Tamils did not feel as threatened under the current Wickremesinghe government.[10] Yet, it also reports that Tamils continue to face human rights challenges.[11] There are reports of assaults, arrests and the alleged torture of Tamil civilians while in police or military custody.[12] Authorities monitor Tamil communities in both the north and east, focusing on Tamils who are suspected of promoting a Tamil state, who are engaged in politically sensitive activism related to human rights issues or the war, and ex-LTTE members.[13] Monitoring can include phone calls, visits and surveillance, and often involves plain clothes officers questioning family members, friends, neighbours and employers.[14]

    [10]       See, e.g. 'DFAT Country Information Report Sri Lanka', Department of Foreign Affairs and Trade, 2 May 2024, 20240502102807 ('2024 DFAT Report'), [3.7].

    [11]       2024 DFAT Report, [3.7].

    [12]       See  'Disappearance, Torture and Sexual Violence of Tamils 2015-2022', International Truth and Justice Project, 9 May 2024, pp.4-5, 22, 24-26, 20240509164608; 'Tamils demand justice over Sri Lankan police assault', Tamil Guardian, 7 May 2024, 20240508101225; 2024 DFAT Report; 'Sri Lankan police assault Tamil man after he asked for return of mobile phone', Tamil Guardian, 10 April 2024, 20240417094750; 'Tamil youth killed in Sri Lankan police custody, multiple injuries found on body', Tamil Guardian, 19 November 2023, 20231122150941; 'Tamil man files complaint at Human Rights Commission following torture by Sri Lanka’s Wildlife Department officials and STF', Tamil Guardian, 19 June 2023, 20230621140216; 'Sri Lanka: Gender-based violence (GBV) against Tamils by state authorities', Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), 17 February 2023, pp.6-10, 20230222085707; 'Two Tamil teenagers hospitalised after Sri Lankan police attack', Tamil Guardian, 5 February 2023, 20230208144806.

    [13]       2024 DFAT Report, [3.13]; See also 'In Sri Lanka, the Military Still Runs the Show', Viruben Nandakumar, Foreign Policy, 4 August 2022, 20220805093320

    [14]       2024 DFAT Report, [3.14].

18. In May 2024, DFAT assessed that ordinary Tamils, including those living in the north and east, face a low risk of monitoring, harassment, arrest and detention.[15] That said, Tamils profiled as political activists and journalists are more likely to attract the attention of authorities.[16]

    [15]       2024 DFAT Report, [3.14]-[3.16].

    [16]       2024 DFAT Report, [3.56].

19. The UK Home Office reports that since 2009, Sri Lanka's security policy has become increasingly sophisticated and involves intelligence gathering and the comprehensive surveillance of its Tamil citizens, as well as the monitoring of the Tamil diaspora.[17]

    [17]       'Country Policy and Information Note Sri Lanka: Tamil separatism', UK Home Office, 15 June 2017, OG6E7028826, [9.3], [13.1]; 'Country Policy and Information Note Sri Lanka: Tamil Separatism ', UK Home Office, May 2020, 20200527172009, [7.2].

20. There are continuing reports of ongoing harassment and intimidation of family members of individuals who disappeared during the war.[18] Family members of disappeared persons have received police visits with summons or restraining orders, sometimes late in the evening or with excessive police presence, preventing them from organising or participating in rallies, protests or memorialisation events.[19] Country information suggests that whilst the Wickremesinghe government has taken a more permissive approach than the previous government to some commemorations, individuals and groups seeking to commemorate the end of the war and fallen LTTE combatants have experienced security forces surveillance have been stopped from marking these occasions, and in some instances have been arrested.[20]

    [18]       See 'High Commissioner presents updates on human rights in Colombia, Guatemala, Honduras, Nicaragua, Cyprus and Sri Lanka', Volker Türk, United Nations High Commissioner for Human Rights (UNHCHR), 1 March 2024, 20240305085106; '“If We Raise Our Voice They Arrest Us” Sri Lanka’s Proposed Truth and Reconciliation Commission', Human Rights Watch (HRW), 18 September 2023, pp.14-16, 20230918110942; 'Situation of human rights in Sri Lanka - Report of the United Nations High Commissioner for Human Rights', United Nations Human Rights Council, 6 September 2023, p.8, 20230907084052; 'Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023, p.345, 2023032814280; 'Protest in Mullaitivu against State ‘intimidation’', Dinitha Rathnayake, The Morning, 15 September 2022, 20220916132208;

    [19]       'Situation of human rights in Sri Lanka - Report of the United Nations High Commissioner for Human Rights', United Nations Human Rights Council, 6 September 2023, p.8, 20230907084052.

    [20]       2024 DFAT Report, [3.15].

21. In KK and RS (Sur place activities, risk) (CG) [2021] UKUT 130, the Upper Tribunal of the Immigration and Asylum Chamber of the United Kingdom concluded, among other things, that the then-current government of Sri Lanka is an authoritarian regime whose core focus is to prevent any potential resurgence of a separatist movement within Sri Lanka which has as its ultimate goal the establishment of Tamil Eelam and draws no material distinction between the violent means of the LTTE in furtherance of Tamil Eelam and the non-violent political advocacy for that result.[21] It also concluded that the Sri Lankan government views the Tamil diaspora with a generally adverse mindset but does not regard the entire cohort as either holding separatist views or being politically active in any meaningful way.

    [21]       KK and RS (Sur place activities, risk) (CG) [2021] UKUT 130.

22. I note that the Upper Tribunal also concluded that other non-proscribed diaspora organisations that pursue a separatist agenda are viewed with hostility, although they are not regarded as “fronts” for the LTTE.

23. The Upper Tribunal also concluded, based on credible evidence, that the Sri Lankan government operated an extensive intelligence-gathering regime in the United Kingdom and that, before the return of an individual travelling on a temporary travel document, the Sri Lankan authorities are reasonably likely to have obtained information on, among other things, whether the individual is associated in any way with a particular diaspora organisation, whether they have attended meetings and demonstrations and if so, at least approximately how frequently this has occurred, any organisational and promotional roles (formal or otherwise) undertaken on behalf of a diaspora organisation, attendance at commemorative events such as Heroes Day and any presence on social media.

24. DFAT Reports that the Tamil diaspora is generally considered more extreme in its political views than Sri Lanka's Tamil population.[22] As was submitted by Dr Mahizhnan, the 2024 DFAT Report observes:[23]

    The Sri Lankan Government assesses that elements of the Tamil diaspora remain committed to an independent Tamil state. Members of pro-independence diaspora groups, particularly diaspora groups banned under Sri Lankan law and/or people who glorify the LTTE, may come to the attention of the Sri Lankan authorities due to participation in public demonstrations or other activities deemed to be promoting Tamil statehood in their countries of residence. According to in-country Tamil sources, the authorities monitor the social media of Tamils living abroad who fit this profile.

    [22]       2024 DFAT Report, [3.97].

    [23]       2024 DFAT Report, [3.99].

    RESOLUTION

25. The applicant claimed to be a national of Sri Lanka. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country. I am satisfied that Sri Lanka is the applicant’s country of nationality and the receiving country.

26. I accept that the applicant is a Tamil male who speaks the Tamil language. I accept that he is from Jaffna, a Tamil majority and formerly LTTE-controlled area and the site of wartime fighting. The applicant has consistently claimed, and it is plausible, that five members of the applicant's family were killed during the conflict between the SLA and the LTTE. I accept this evidence.

1. The delegate accepted that the applicant had been detained in 2006 but did not accept that the applicant was a suspect in the October 2008 bomb blast or that he was detained in October 2008. The applicant’s claim to have been detained in 2006, along with two others, is credible and supported by credible documentary evidence. The documentary evidence, which appears on its face to be genuine, has been translated and supports that the applicant was arrested under suspicion of Tamil terrorist activities. Like the delegate, I accept that the applicant was detained in 2006 under suspicion of Tamil terrorist activities.

2. In this review application, witnesses have provided evidence of the applicant's involvement with the Australian Tamil Congress, particularly the applicant's role in organising Hero's / Martyr's Day (Maaveerar Naal), protests and demonstrations against the Sri Lankan government. The evidence of those witnesses also refers to the suspicion that the Sri Lankan authorities operate intelligence networks in Australia that monitor the Sri Lankan diaspora. In August 2022, the Sri Lankan government delisted the Australian Tamil Congress as an organisation that supported and funded terrorism.[24]

   [24]       2024 DFAT Report, [3.98].

3. The applicant has also provided evidence demonstrating his activity on social media regarding issues that Sri Lankan authorities would regard as sensitive and would, in combination with his past profile, likely mean that the authorities would consider the applicant as holding separatist views and promoting a separate Tamil state. He has also provided evidence of his attendance at protest events and Tamil commemoration events, including Hero's / Martyr's Day (Maaveerar Naal).

4. The evidence before me demonstrates the applicant's engagement with and involvement in Tamil diaspora groups is long-standing and continued even when the applicant was the subject of a bar against the lodgement of a further protection visa application. Such action indicates the applicant’s commitment and dedication to that cause, which goes beyond engaging in those activities to strengthen his claims to be a refugee. Moreover, I observe that the applicant has provided evidence that he engaged in these behaviours when he was the subject of a bar against the lodgement of any further protection visa application. I am satisfied that this conduct has not been engaged to seek to strengthen his claim to be a refugee. Section 5J(6) does not apply.

5. The test as to whether an applicant faces a real chance of serious harm does not require a conclusion of a real chance of serious harm on the balance of probabilities; rather, it requires a conclusion that the chance of serious harm is neither remote nor far-fetched. Indeed, had my findings been required to be made on the balance of probabilities, I would likely have come to a different conclusion.

6. In the circumstances, I am satisfied that the applicant is likely to be considered by Sri Lankan authorities to be a member of the Tamil diaspora and suspected, or imputed, to hold views supportive of the establishment of a separate Tamil state and is a supporter of the LTTE. That finding is made having regard to a cumulative consideration of:

   (a)the applicant's lengthy absence from Sri Lanka and participation in the Tamil diaspora, including with the Australian Tamil Congress, which was, for a long time, a proscribed organisation in Sri Lanka;

   (b)the applicant's involvement in social media activity, which is critical of the Sri Lankan government and the country information which suggests that the Sri Lankan authorities monitor social media activity of the Tamil diaspora;

   (c)the applicant's organisation of, and involvement in, protests and LTTE commemoration events whilst in Australia, which the country information suggests is closely monitored by the Sri Lankan authorities;

   (d)the applicant's departure from Sri Lanka, together with the likelihood of the applicant being returned to Sri Lanka involuntarily as the holder of a temporary travel document;

   (e)significantly, my acceptance of the applicant's detention in 2006 on suspicion of terrorism-related activities.

7. In the circumstances, having regard to my findings as to the applicant's profile, actual or imputed, I am satisfied that he faces a risk of serious harm arising from his arbitrary arrest, detention, ongoing monitoring and harassment, and exposure to physical harm whilst in custody. Insofar as the qualitative nature of the risk, I am satisfied that it is a risk that is properly characterised as neither remote nor far-fetched and, in those circumstances, amounts to a ‘real chance’.

8. I am satisfied that the essential and significant reasons for the real risk of harm are the applicant's Tamil ethnicity, actual or imputed political opinion (in favour of a Tamil state), and membership of a particular social group, the Tamil diaspora. I am further satisfied that the persecution involves systematic and discriminatory conduct. I am satisfied that the applicant cannot avoid persecution by modifying his behaviour in a way permitted by s 5J(3).

9. There is no evidence before me to suggest that the applicant has a right to enter and reside in a safe third country. The applicant is not excluded from protection by operation of s 36(3) of the Act.

10. As the risk of harm is from Sri Lankan authorities, I am satisfied that it relates to the whole of Sri Lanka and that the applicant cannot obtain protection from the Sri Lankan authorities, his putative persecutors.

11. I am further satisfied that the applicant cannot avoid persecution by modifying his behaviour as permitted by s 5J(3).

12. I find that the applicant is a refugee within the meaning of s 5H of the Act. I am satisfied that the applicant satisfies s 36(2)(a) of the Act.

    COMPLIMENTARY PROTECTION

13. Having concluded that the applicant satisfies the criterion in s 36(2)(a) of the Act, it is not necessary for me to determine whether the applicant meets satisfies the complementary protection criterion in s 36(2)(aa) of the Act.

    CONCLUSION

14. The applicant is a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a).

    DECISION

15. The Tribunal remits the application with a direction that the applicant satisfies s 36(2)(a) of the Act.

    Fraser Robertson
    Member
    

    ATTACHMENT – EXTRACT FROM MIGRATION ACT 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country, in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:       For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:       For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:       For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:       Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally