1916960 (Refugee) - [2024] ARTA 590

1916960 (REFUGEE) [2024] ARTA 590 (25 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1916960
Tribunal:General Member P Tyson
Date:25 October 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 25 October 2024 at 4:26pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from gangster after reporting crime to police – threatening phone calls and police inaction – inconsistent and contradictory claims and documentary evidence – timing of events and planning and route of departure – medical condition, ethnicity and employment prospects – country information – universal health care and low unemployment – moderate discrimination against Indians – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS

On 14 October 2024, the Administrative Appeals Tribunal (AAT) was replaced by the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Malaysia, applied for the visa on 2 October 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.
The applicant appeared before the Tribunal at a hearing on 18 October 2024 to give evidence and present arguments.
BACKGROUND
According to his evidence at the Tribunal hearing, the applicant is a [Age] year old man who, prior to leaving Malaysia, lived in Johor Bahru. He is of Indian ethnicity and Hindu religion. He had a long career in the [work sector] industry and since around [Year] had commuted across the border to Singapore on a daily basis for work. He had work permits that facilitated this. The applicant’s parents passed away when he was young. He has [siblings], one of whom is also in Australia. He was previously married and had a child, but has not seen his former wife or child since they separated many years ago. The applicant arrived in Australia [in] July 2018, on a visitor visa. Here he has done further studies in [work] skills and is currently working as [an occupation] at a [workplace] in Sydney.
Evidence before the Department
In his visa application, the applicant made claims for protection which can be summarised as follows:
·On 21 May 2018 the applicant was on the way home from Singapore to Malaysia after work. At around 1am while walking to the taxi station, he saw several Chinese men and Indian men fighting. One of the Indians was bleeding. The applicant suspected he had been stabbed by the Chinese men.
·The applicant called emergency services and police and ambulance arrived in 15 minutes. The police praised him for his braveness in calling them and took his details and contact numbers.
·On 24 May police called the applicant to come to the station. He went at around 11am and met inspector [A], who asked him to identify the Chinese suspects. He identified two of them.
·On 5 June 2018 the applicant received a call from a Chinese guy [Mr B] who threatened him not to identify the two men in court when called by police. The applicant sought help from police saying he had received the call, and the police said not to worry and they would look after him. However, the next day he received another call from [Mr B] asking why he had gone to the police, and realised that the police have links with the gangster [Mr B].
·The applicant fears he will be tortured and killed by the gangster [Mr B], and will have no police protection as they are on the gangster’s side. The police are corrupt.
·The gangsters are a chain of a group and can find him in any part of Malaysia.
With the application, the applicant provided a copy of his Malaysian identity card and Malaysian passport. He also provided the approval of his Australian ETA (Electronic Travel Authority), dated 22 May 2018.
The applicant was not invited to an interview with a delegate from the Department of Home Affairs.
Evidence before the Tribunal
At the Tribunal hearing on 18 October 2024 the applicant gave evidence in English. He made claims similar to those in the statement, relating to having witnessed a stabbing in May 2018. He also made additional claims relating to his medical condition, Indian ethnicity, and ability to find adequate work in Malaysia or Singapore.
The applicant was offered further time to provide additional material following the hearing, but declined that offer.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 Minister 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: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(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. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia 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 being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[1]
Mandatory considerations
[1] MIAC v SZQRB (2013) 210 FCR 505.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issues in this case are whether the applicant’s claims about his experiences in Malaysia are credible and whether there is a real chance of the applicant being persecuted in the reasonably foreseeable future, or a real risk of him suffering significant harm, in relation to any of the matters he has raised. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant has provided a copy of his Malaysian identity card and Malaysian passport. He presented his original passport at the hearing. On the basis of these documents and the applicant’s oral evidence I accept he is a national of Malaysia as claimed.
Witnessing stabbing and being threatened by gang
At the hearing, the applicant gave an account of witnessing a fight, calling police, identifying two of the suspects and receiving threatening calls that was generally consistent with the brief claims outlined in his visa application. However, his account is undermined by documents he submitted, and I also have concerns over contradictory evidence he gave during the hearing.
It was the applicant’s claim that he left Malaysia after receiving threats. However, the applicant gave differing evidence at the hearing about his movement in the period between his witnessing the stabbing and his departure from Malaysia. At the start of the hearing, he gave evidence that he had been living and sleeping at his rented accommodation in Johor Bahru up until when he left Malaysia. He claimed to have left Johor Bahru towards the end of June 2018. He said he travelled from Johor Bahru to Singapore, flew to [Country 1]. He spent a week in [Country 1] then flew back to Kuala Lumpur so nobody could track him. He specifically said that when he flew back to Kuala Lumpur he had not exited the airport but just changed terminals, so nobody would know he had come back to Malaysia. He did not need to present his passport to enter and exit Singapore, as he could use his work permit, but did need to use it to travel to [Country 1]. He also said that he had finished work around a week before coming to Australia.
The applicant’s claim about having travelled to Australia via [Country 1] is undermined by the stamps in his passport, which show that the applicant last entered [Country 1] on [Day 1] June 2018, and departed Thailand on [Day 2] June 2018. He did not arrive in Australia until [July] 2018. When I raised this with the applicant and asked what he had been doing between [Day 2] June and his departure, he shifted his evidence and gave an improbable account. He claimed that he had gone to [Country 1] from Singapore in early June to relax. When he returned to Malaysia he received threatening calls, and at the end of June he made a second trip to [Country 1] by land, entering illegally. He stayed around five days in a border slum area, then passed back into Malaysia without using a passport. From there, he caught a bus to Kuala Lumpur and flew to Sydney. He said that prior to this, he had been working in Singapore and trying to stay there or with a friend to avoid detection.
There is a further discrepancy in the evidence as to when the applicant began planning to leave Malaysia. When asked when he began organising his travel to Australia, the applicant said it was around two or three weeks before he came. He claimed to have been receiving threats at that time. Asked about what was required to plan his travel, he said he had to apply for an ETA, which he said was approved within two or three days. As put to the applicant, the ETA approval he submitted shows that it was granted on 22 May 2018. This is one day after the claimed stabbing incident, and weeks prior to the claimed threats. When I raised with this the applicant, he presented a different version of events, saying that he had earlier applied for an ETA because he had been intending to travel to Australia to visit a friend, but had ultimately not made that trip because another friend’s visa was refused. I asked the applicant why, if he already had a visa at the time of the threats, he had not departed Malaysia earlier. He referred to the fear he faced travelling back to Malaysia every night from Singapore. He repeated his claim about his earlier intention to travel to visit a friend, referred to having a good job and good income and indecision about what to do. I asked why, instead of staying in the border area of [Country 1], he had not just come straight to Australia, and at that point he referred to waiting for his pay.
When I raised my concerns with the applicant’s evidence, he referred to the passage of time since the events, and to me asking him not to refer to his passport. (I note that at the start of the hearing, the applicant was looking at his written claims, and I requested that he put them away and instead speak from memory. When I initially asked at the hearing about the dates of his last travel before coming to Australia, the applicant said he was unable to recall the exact dates, but could look in his passport. This was when asking specifically about his last travel, not when recounting his movements at the time he left Malaysia.) The applicant also said that he is on 11 different medications a day, which impact him, and is sometimes forgetful at work. He added that he is tired, as he finished work late at night and had to get up early for the hearing. While I take these matters into account, as I put to the applicant, when he was asked at the start of the hearing about his movements prior to leaving Malaysia, he did not claim to be unsure, or to have forgotten his pattern of movement, other than not remembering the precise dates.
As raised with the applicant, he has presented differing evidence as to whether or not he was living at his rented accommodation in Johor Bahru up until when he left Malaysia. He also presented completely different versions of his travel to [Country 1] and the circumstances of his departure to Sydney. He changed his evidence when presented with concerns. I do not accept that the applicant made a second, unlawful trip to [Country 1]. Given the timing evidenced by the stamps in his passport, I do not attempt that he flew from [Country 1] to Kuala Lumpur then on to Sydney in order to avoid the need to present his passport in Malaysia and remain undetected, as he claimed. I do not accept the applicant was staying with a friend or in Singapore prior to his departure to avoid detection, I prefer his initial evidence that he was staying at his accommodation in Johor Bahru until he left.
The applicant’s claims to have received threats after witnessing a stabbing, and to have applied for a visa to leave Malaysia because of these events, are undermined by the ETA approval indicating that he had already applied for an ETA prior to when he says these threats were made. I do not accept his evidence that he had obtained the ETA for an intended earlier trip. The explanation is undermined by the applicant himself having initially referred to obtaining the ETA to travel after receiving the threats. Further, it does not explain why, if he already had an ETA and was in fear for his life, h would not have left Malaysia earlier.
The applicant changed his evidence a number of times in response to my questions and concerns and I do not consider the account he gave about leaving Malaysia because of threats to be reliable. I do not accept that he witnessed a stabbing which he reported to police, identified suspects, received threats, or any of his related claims. I find that there is no real chance or risk of the applicant being harmed in relation to any of these claimed events.
Other claims
During the course of his evidence at the hearing, the applicant made claims about his circumstances on return to Malaysia relating to his Indian ethnicity and Hindu religion, ability to find work, his medical condition, and his preference for living in Australia. Aspects of these claims are interrelated. At the hearing, I discussed with the applicant country information relating to these matters, and also put concerns to him as to whether these claims would meet the criteria for a protection visa.
The applicant said that he has suffered a heart attack, has high blood pressure, cholesterol and diabetes. He takes a range of medication each day, and sees a cardiologist monthly. I accept his evidence about this, noting that in an email to the Tribunal in March 2024 requesting a letter for the purpose of accessing Medicare he referred to being a heart and diabetes patient. The applicant claimed that if his heart attack had occurred in Malaysia, he would no longer be alive. He said that if a person is not a politician or well-known they cannot get access to treatment, because the heart foundation is privately owned, and expensive to access.
As discussed with the applicant at the hearing, according to the Department of Foreign Affairs and Trade (DFAT), Malaysia has a well-established universal health care system accessible to most of the population. Health facilities are generally available within a five kilometre radius in urban centres, although less available outside major cities. Healthcare is generally affordable.[2] In response to this information, the applicant stated that while healthcare may be available for routine illness, that is not the case for chronic or serious medical conditions. Certain ‘good’ medication is not available in Malaysia. He said such treatment is only available privately and you have to be ‘somebody’. Questioned about whether this was because of the cost or another reason, he confirmed it was the cost and referred to ‘normal’ or ‘average’ people dying of stroke and heart attacks. He contrasted this with politicians and the rich. However, he then claimed that non-Muslim minorities such as Indian Malaysians are excluded from benefits.
[2] DFAT, ‘Country Information Report Malaysia’, 24 June 2024.
The applicant said that because of his health conditions and age he will be unable to get a job, particularly in Singapore where employers require health examinations. As raised with the applicant at the hearing, even if it is the case that he is no longer able to find work in Singapore, there is low unemployment in Malaysia, around 3.4%. There are labour shortages in many sectors, leading to a high reliance on migrant labour. Malaysia is an upper middle income country and its strong economic performance over the last few decades has led to a significant reduction in poverty. Nonetheless, ongoing economic challenges include inflation and cost of living increases, as well as high levels of household debt.[3]
[3] DFAT, ‘Country Information Report Malaysia’, 24 June 2024.
In response to this, the applicant referred to the low salaries paid in Malaysia, which he said was around AUD500 a month which did not leave much after paying rent and food. He said he would not be able to access medication. He also later made claims about the economic circumstances of older people in Malaysia, saying many are reduced to begging and collecting cans. In response to a question as to whether any economic harm would be discriminatory or intentional, he claimed that he would be discriminated against on the basis of his Indian ethnicity, that a lot of companies do not want to hire Indians.

I also discussed with the applicant information about the treatment of ethnic Indians and Hindus. Indian Malaysians are the third largest ethnic group in Malaysia and comprise around six per cent of the population. Many Indian Malaysians are relatively poor, being excluded from benefits afforded to Bumiputera (ethnic Malays and indigenous peoples). They also reportedly suffer discrimination in obtaining rental accommodation, in tertiary education which is based around positive discrimination for Malays, and are under-represented in the civil service, police and military. Indian Malaysians are over-represented in prison and the high level of incarceration as well as economic and social alienation is reportedly leading to gangsterism. DFAT assesses that Indian Malaysians face moderate levels of official discrimination, including when attempting to gain entry into the state tertiary system or civil service.[4]
[4] DFAT, ‘Country Information Report Malaysia’, 24 June 2024.
There have been instances of Hindu places of worship being destroyed based on allegations they were built without permission or incorrectly zoned. The most recent DFAT report also refers to an instance of a Hindu festival holiday being cancelled. DFAT assesses that Hindus are generally not at risk of societal discrimination but face a moderate risk of official discrimination in the form of demolition or removal of certain places of worship, although in most cases alternative places of worship are available.[5]
[5] DFAT, ‘Country Information Report Malaysia’, 24 June 2024.
In response, the applicant indicated that he had personally been rejected from admission to university because of his ethnicity. He reiterated his claim that Indians are not given health care for critical illness. He also suggested that what is happening in Malaysia is not publicised outside the country, and that Indians are looked down on.
As discussed with the applicant at the hearing, ‘well-founded fear of persecution’ in s 5J involves systematic and discriminatory conduct, must be for reasons of race, religion, nationality, membership of a particular social group or political opinion, and involves serious harm. Section 5J(5) provides that the following are instances of serious harm: (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. While these instances are not exhaustive, they are illustrative of the level or types of harm that may amount to serious harm.
The country information indicates that health care is available in urban areas of Malaysia and does not support the applicant’s claim that Indian Malaysians are denied or offered lesser care. While I am willing to accept that better healthcare and medication may well be available to those able to pay for it, and that the standard of health care available to the applicant in Malaysia may not be the same that he is receiving in Australia, I am not satisfied on the evidence that there is a real chance of the applicant being discriminatorily denied health care because of his ethnicity or for any other reason, or otherwise suffering persecutory harm in relation to his health.
While it is evidently distressing that the economic situation in Malaysia is such that some older Malaysians subsist by begging or collecting cans as the applicant claims, I am not satisfied that this involves any sort of systematic of discriminatory conduct such that it would amount to persecution.
I accept on the country information above that the applicant may experience discrimination in areas such as employment and obtaining accommodation on account of his Indian ethnicity and that there is occasional discrimination against those of Hindu religion. His claim not to have been granted entrance to university is consistent with information that it is harder for Indians to gain university entrance and I accept he had that experience in the past. The country information regarding employment discrimination refers to work in the civil service, but noting that the information refers to Indian Malaysians being relatively poor I accept it is possible that they face barriers to other high paying employment.
I am willing to accept the applicant’s claim that he may face difficulties again working in Singapore given his medical history. However, Singapore is not the applicant’s country of nationality. While the applicant has evidently worked in Singapore for much of his career, he gave evidence that he had worked in his field in Malaysia in the past. He is skilled and has obtained further qualifications and experience in Australia. While I note he claimed his age may also be a barrier, he is [Age] and on his evidence currently able to work up to 60 or 70 hours a week (which he says he chooses to do in order to learn faster) despite his medical conditions. Taking into account the applicant’s age, ethnicity and the general economic conditions in Malaysia, I accept that the applicant may not find employment that would pay what he was earning in Singapore or Australia. However, the country information indicates that unemployment is low. The information does not suggest that Indian Hindu Malaysians are denied employment, rental accommodation or the ability to worship. The applicant does not claim that he intends to apply for civil service employment or attempt entrance to university in the future. While I accept the applicant may face some discrimination I am not satisfied there is a real chance of the applicant being denied adequate work in Malaysia in the reasonably foreseeable future such that his capacity to subsist would be threatened or that he would otherwise experiencing discriminatory or other treatment at a level that would amount to serious harm within the meaning of s 5J(4)(b).
Considering the evidence as a whole I am not satisfied that there is a real chance of the applicant experiencing treatment in the reasonably foreseeable future that, even taken cumulatively, would involve serious harm and amount to persecution for one of the reasons in s 5J(1)(a). The applicant does not have a well-founded fear of persecution within the meaning of s 5J.
Turning to whether there is a real risk of significant harm to the applicant under the complementary protection criterion, as discussed with the applicant at hearing, ‘significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. The definition of torture requires as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. ‘Cruel or inhuman treatment or punishment’ is exhaustively defined to require an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The definition of degrading treatment or punishment requires an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable. Each of these three definitions requires that the pain, suffering or humiliation must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct.[6]
[6] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362.
I am not satisfied on the evidence that there is a real risk of the applicant being subject to the death penalty.
As I have said above, I accept the applicant may not receive a level of public health care comparable to that in Australia, or of the quality that might be accessed privately. However, I am not satisfied on the evidence that any inability of the applicant to obtain adequate health care for his conditions would amount to significant harm. I do not accept that death through illness due to inadequate healthcare is ‘arbitrary deprivation of life’ within the meaning of the Act. I also do not accept that any pain, suffering or humiliation that the applicant may experience in relation to his health and any inability to receive adequate care involves the element of intention required by torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
Regarding the applicant’s claim about the situation for older Malaysians, this would appear to arise from general economic conditions in Malaysia and I am not satisfied that this entails arbitrary deprivation of life in the relevant sense, or the element of intention required by torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
Having regard to the reasoning above, I accept the applicant may not be able to work in Singapore and may face some discrimination in Malaysia, including in employment. I also accept that he may experience other discrimination on account of his ethnicity and religion. However, noting the country information above, the low unemployment rate and the applicant’s skills, I am not satisfied there is a real risk of the applicant being denied employment or otherwise experiencing treatment at an extent that would entail arbitrary deprivation of life, or would involve the level of pain, suffering or humiliation required by the definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
Taking the evidence as a whole, I find there is not a real risk of the applicant suffering significant harm as defined, even taking these various harms cumulatively.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 18 October 2024
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.
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36     Protection visas – criteria provided for by this Act
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(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.
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