1919796 (Refugee) - [2025] ARTA 778

1919796 (REFUGEE) [2025] ARTA 778 (8 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1919796

Tribunal:General Member C Dutkowski
Date:8 January 2025

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

CATCHWORDS
REFUGEE – protection visa – Malaysia – multi-level marketing business – period of unlawful residence – physical assault – attack on home – involvement in a drug dealer group – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 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 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who the Tribunal accepts is a national of Malaysia, applied for the visa on 21 January 2019. The delegate refused to grant the visa on the basis that the applicant’s claimed fear of harm was not for one of the reasons in s 5J(1)(a) of the Act, and because the applicant could obtain protection such that there would not be a real risk that he would suffer significant harm.
The applicant appeared before the Tribunal on 3 January 2025. As the applicant lives in regional Australia, he appeared via video link. The Tribunal is satisfied the applicant was given a meaningful opportunity to present his case, make submissions and adduce evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
The applicant is [an age]-year-old man from Malacca. He is ethnic Malay and of the Islamic faith.
The applicant was married in 2020 in Australia. He met his wife in [Town 1] while [working]. She is also Malaysian and is waiting for a decision on her protection visa application. They have [number] children together, born in [specified years].
The applicant’s parents are living in Malacca, near where the applicant lived. His father is retired and suffering from dementia. His mother is still working [at two jobs]. He often communicates with his mother, usually two to three times each month.
The applicant has [number] siblings: [gender and ages specified]. They are all in Malaysia. [One sibling] is in college. [Another] is married. He has no communication with [them] and rarely communicates with his other siblings. He is not sure where they are living.
The applicant’s oral evidence was that he grew up in Malacca and dropped out of school when he was about [age] years old, around [specified year]. His father had financial issues and his siblings wanted to pursue education, so he dropped out to help his parents. After he finished school, he was at home supported by his parents for a while. He then worked in his father’s [business], [business and duties specified]. This was until he was [age] years old. After this, around [year], he worked as [an occupation 1]. He was lucky as he lived close to [his work]. He did this for a long time; until he was [age], around 2012. He was also working in a farm.
The applicant gave evidence that while at a market selling his [products], he met an old friend from school and he introduced multi-level marketing to him. He worked there for a brief period, and later at a [business 1] owned by his uncle until he came to Australia. The applicant’s experiences with the multi-level marking business form the basis of one of his claims for protection and this is discussed below in the Tribunal’s findings and reasons.
The applicant arrived in Australia [in] December 2015 as the holder of an Electronic Travel Authority (ETA) visa.
The delegate’s decision record indicates that the applicant’s ETA visa ceased [in] March 2016, after which time the applicant became an unlawful non-citizen. The record indicates that a Bridging Visa E was granted on 19 May 2016, which ceased on 26 May 2016, after which the applicant was again an unlawful non-citizen. He was granted another Bridging Visa E on 26 May 2016 and this ceased on 20 June 2016. The applicant was an unlawful non-citizen until he applied for a protection visa on 21 January 2019 and was granted another Bridging Visa E. The Tribunal discussed this history with the applicant at hearing and explores it below in the Tribunal’s findings and reasons.
The applicant gave oral evidence that after he applied for the visa in 2019, he tried to apply for a proper job but had no work rights, so had to do random jobs like mowing lawns to survive. He is currently picking fruit, two days per week.
Evidence before the Department
The applicant’s protection visa application said that he left Malaysia because he was involved in multi-level marketing. He experienced harm in that ‘they hit me by car and broke my leg’. He was in fear of his life, and they will mistreat him if he goes back because ‘some of them get invest in our multi-level marketing business’. They already hit him by car, blackmailed him and broke into his house.
The delegate refused to grant the visa on 10 July 2019.
Evidence before the Tribunal
The applicant applied for review on 20 July 2019.
The applicant provided no additional evidence or material to the Tribunal apart from his oral evidence at hearing.
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.
Mandatory considerations
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant claimed in his protection visa application and oral evidence at hearing that he feared returning to Malaysia because of his involvement in a multi-level marketing business. He also claimed during the hearing to fear harm because of his involvement in a drug dealer group.
Multi-level marketing business
The applicant explained at the hearing that he was introduced to a multi-level marketing business through an old school friend. He ran into this friend at a market while selling [products]. His could not remember his name except it was [Mr A or a similar name]. His friend showed him a lot of money and had expensive clothes and the applicant asked how he made the money, and his friend explained it to him. His friend explained that multi-level marketing was a business where you could make money fast. They sold [product 1] and had to find people to be under their branches and they could make money from that.
The applicant started working for the business in early 2012. To his best recollection the business was called [name]. He was not sure how many people were involved but he went to an anniversary event and there were a lot of people participating. He was also not sure about the name of the business owner. The applicant said he worked there for two months and things were fine, but in the third month an issue arose. The Tribunal asked the applicant to explain what the job involved. The applicant spoke about meeting with clients, closing some deals, and going to clients’ houses to install products. Some clients were neighbours and some friends. The Tribunal asked if he was paid a salary. The applicant said there was no regular salary; it was based on performance. If he sold a product, he got paid from that. The applicant also gave evidence about recruiting new members. He said he recruited [number] people in the two months he worked there. They had four meetings a week and he would find members to recruit into the business through that process. It was quite random. Sometimes when he went to install the [product 1], people were interested.
Although the Tribunal has some concerns about the applicant’s inability to recall details such as the name of his friend who introduced the business and the owner of the business, the applicant’s evidence about his experience working in the business is generally consistent with information about the nature of multi-level marketing businesses, which use networks to sell products and recruit new participants.[1] Individuals are given a commission and are encouraged to recruit others into the business, as an individual receives a percentage of the sales of their recruits and their recruits, and so on.
[1] See, e.g., (accessed 3 January 2025).
The Tribunal accepts that the applicant worked for a multi-level marketing business in 2012.
The applicant said that while everything was fine for two months, after this, he, and the people under him, were not paid for their sales. When this happened, he tried to find the friend that introduced him to the business, and the upper leaders, because they escaped or ran away with his money. He only remembered one leader’s name: [Leader A]. He thought [Leader A] was a leader because every time he had a meeting with a new customer, [Leader A] always came and did some closing with them as well. He tried to report them to the police but one of the leaders hit him with a car while he tried to escape with his motorbike.
The applicant explained that he was with a friend, [Friend A], on his motorbike. [Friend A] was helping him find the leaders. While they were on the motorbike, [Friend A] saw the leaders, so they went to see them. The Tribunal asked how [Friend A] knew what the leaders looked like. The applicant said one of the leaders was their friend from school ([Mr A or a similar name]) so [Friend A] recognised him. They were about to enter their car in front of a hotel. They were surprised when they saw the applicant. The applicant talked to them about the money and they said to be patient and they would pay later. However, the applicant said he grew up in the areas and therefore claimed he knew their character and that they were lying and he threatened them that he would go to the police. They became angry and one of them held the collar of his shirt and threatened that they would kill him. He tried to defend himself by kicking. He fled on the motorbike towards the police station but they intercepted him on the way, and hit him with the car. He was in a coma for three months in [a specified hospital]. He had [specified injuries].
The Tribunal asked what happened after he woke up. The applicant said his mother was worried about his safety and called his uncle to help him to go to another county. The applicant said he lived at his own home for three to four months and then moved to Johor as his uncle had [started] a [business 1]. He worked with him until his visa to Australia was granted. The applicant described this work as laborious. They were no machines. The Tribunal asked how he was capable of such work given his injuries. The applicant said he had to work in order to survive, and he was lucky as there were other workers to help him lift heavy things.
The Tribunal has some doubts about the credibility of this claim. He claimed the leaders escaped and ran away with the money, yet his friend [Friend A] happened to spot them outside a hotel in [a town in] Malacca. However, it is plausible that the applicant was cheated out of money he was owed, given the sometimes pyramid-scheme nature of multi-level marketing businesses, and plausible that in the heat of the moment, when the business leaders feared the applicant would go to the police, that he was run down en-route. The applicant’s claim is also generally consistent with the (albeit brief) written claim in his protection visa application that he was hit by a car and [suffered an injury]. The Tribunal is prepared to accept the applicant’s claim that he was involved in an argument with the business leaders about the non-payment of money owed and that he was injured when he fled on his motorbike and hit by their car.
However, the Tribunal is not satisfied that the business leaders had any further interest in harming the applicant after this incident.
Firstly, when asked whether the applicant had any further contact with the leaders after the hospital and before coming to Australia, a period of around three years, the applicant said he did not, but they disturbed his [sister] and threatened her that they would look for the applicant and kill him. The Tribunal asked why they would want to kill him and the applicant said because he knew what they were doing and were afraid he would report them to the police. He said he was afraid to return home because he dealt with drug dealers. The Tribunal discusses this claim below. In relation to his sister, the applicant claimed they disturbed her when she was [age range] years old when she was living out of town in a school dorm. The applicant agreed this was about [number] years ago. He was in Australia. The applicant also claimed they threatened his parents when they went out for shopping or doing something else. This was three or four years ago.
The Tribunal notes that the incident with the business leaders took place in 2012. The applicant did not leave Malaysia until December 2015. The applicant lived in his own home for several months after leaving hospital, so would have been easy to find. He also claimed the leaders were able to find his sister in her school dorm, out of town, years later, and speculated that that leader was his previous school friend so he thinks when his [sister] went out from the school dorm they detected her. When the Tribunal asked the applicant about his delay in coming to Australia, he said he was saving money to come to Australia and doing some physio and waiting for his visa. While the Tribunal accepts the applicant may have been saving some money and doing some physio, three years remains a long period. Of greater significance to the Tribunal, however, is that the applicant came to no further harm and had no further interactions with anyone from the marketing business during this time.
It also does not appear plausible to the Tribunal that the leaders would seek to threaten the applicant’s sister around 2017, some five years after the motorbike incident, especially when they had not interacted with the applicant after the incident, or that they would seek to threaten his parents again around 2021, when the applicant was still in Australia.
The Tribunal asked the applicant why the business leaders would seek to harm the applicant some 12 or 13 years after the motorbike incident. The applicant said he wasn’t sure, but they might be mad at him because he told them wanted to report them to the police. The Tribunal has considered this, however, finds that if they had such concerns, they would have pursued the applicant in the years he was still in Malaysia. The applicant also said he had not tried to report the matter to the police since he came to Australia and would not pursue it if he went back to Malaysia, however he might see if he could get money back from some of the people who were below him in the business.
In addition, the Tribunal notes the applicant’s delay of over three years in applying for a protection visa after arriving in Australia. When the Tribunal indicated to the applicant that this might cause it to doubt the genuineness of the applicant’s claimed fear of harm, the applicant said when he arrived he was scared, had no phone or food or proper accommodation, and was in the middle of the jungle. He tried to escape but there was a guard dog and he didn’t see other people in his area.
In relation to the applicant’s evidence about his arrival in Australia, he discussed first going to [Town 2] in Victoria and being scammed by the person he was first with, as they asked for $8000 or $10,000 to process a visa for him but he did not have the money. The Tribunal sought to understand the circumstances surrounding the grant of bridging visas to him for short periods in May 2016. The applicant said that back then there was an operation at a train station and he met someone and they looked at him because he was very nervous and trying to hide and he suggested that the applicant make that visa application. At the time he was intending to go back to Malaysia but then his family later told him people were looking for him, so he applied for a protection visa to stay legally. That conversation was the year before he applied for the visa. The Tribunal asked if this was 2018. The applicant said it was earlier, probably 2017. He was in [Town 3] in South Australia. The Tribunal notes the applicant’s protection visa application said he lived here from May to December 2017.
The Tribunal found the applicant’s evidence about the bridging visas to be vague, implausible and evasive. The Tribunal also asked the applicant what he was doing in the two and a half years between when his second bridging visa ceased and before he applied for a protection visa. The applicant said he tried to apply for a visa but the person charged him a lot of money and the person he was working for did not page him a wage. The Tribunal accepts that the applicant may have been unable to pay two people seeking to charge him exorbitant fees to help lodge a visa application, and that he may have suffered exploitation at the hands of an employer during some of his time in Australia. However, the applicant did not take the opportunity to return to Malaysia at the time of obtaining the bridging visas in 2016, despite saying he intended to at that time. This suggests to the Tribunal that the applicant did not fear returning to Malaysia.

Taking into account all of the above, the Tribunal finds that the business leaders (including his friend, [Mr A or a similar name]), had no further interest in harming or threatening the applicant after the motorbike incident, and have no current or future interest in the applicant. The Tribunal considers the incident took place in a heated moment and that the business leaders did not consider the applicant an ongoing threat to their business enterprise. The Tribunal places weight on the applicant’s safety in Malaysia for several years after 2012, including when he lived in his own home for several months after leaving hospital. The Tribunal does not accept that the business leaders threatened his [sister], or his parents, at any time after the applicant left Malaysia. The Tribunal also does not accept the applicant’s claim, written in his protection visa application, that the business leaders blackmailed him and broke into his house. The applicant gave no evidence at hearing that any such events had taken place. Rather, as discussed above, the applicant provided no evidence about further interaction with them after the motorbike incident and stay in hospital. The Tribunal finds that the applicant, upon return to Malaysia, would not seek to pursue the business owners, either personally or through the police, noting his own evidence and the passage of time.
Given the above findings, the Tribunal is not satisfied that the applicant faces a real chance of serious harm upon return to Malaysia, now or in the reasonably foreseeable future, nor a real risk of significant harm, because of working for a multi-level marketing business and being harmed by some business leaders when he was hit by their car after he threatened to report them to the police.
Drug dealers
In the context of questioning about why the marketing business leaders had disturbed the applicant’s sister and would want to kill him, the applicant stated that he was afraid to return home as he wanted to remove himself from a drug dealer group, so they threw him into the ocean. He said that when he was [very young] he was recruited to sell drugs and did this until he was 20 years old when he came to Australia. The incident when they threw him in the ocean was when he was [age]. He at the time told them he wanted to leave the group and they invited him to go on a boat journey and in the middle of the journey they threw him into the ocean as they were angry. He sold drugs like methamphetamine and ecstasy to specific customers and in bars. The Tribunal asked if he was involved with the group when he moved to Johor to work at the [business 1]. The applicant said yes, they came and followed him and have a lot of people around the country so they informed the person who recruited him earlier and they made him pay money to remove himself from the group. The Tribunal sought to clarify if the applicant had paid money to leave the group. The applicant said he didn’t really pay it. They asked him to pay 30,000 at the beginning but then increased the amount and were just playing with him.
The Tribunal observes that this is a significant claim, representing a dominant and long-standing feature of the applicant’s life and which presents a significant safety threat to the applicant. In such circumstances, the Tribunal has concerns that the applicant did not raise it in his initial protection visa application, or at any other stage before the Tribunal’s hearing.
As discussed at hearing, s 367A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made. The applicant said he told his friend, who helped with his visa application, about the drug dealers, but the friend only wrote about the multi-level marketing issue. He thought he was only allowed to provide one reason for seeking protection and decided to raise it during the Tribunal hearing. Earlier in the hearing he thought he could discuss case by case so revealed this case after the marketing business case.
The Tribunal is satisfied the applicant does not have a reasonable explanation why the claim was not made before the primary decision was made. The protection visa form asked for the ‘reasons’ for claiming protection, explained that the applicant should tell the Department everything about why they think they are owed protection, and asked in broad terms why he left Malaysia, if he experienced harm, what he feared would happen if he returned, and who would harm him if he returned. The applicant has not offered any other explanation as to why his friend did not write about the claim. The Tribunal draws an inference unfavourable to the credibility of the applicant’s claim to have been involved with drug dealers and subjected to harm when he tried to leave the group.
Furthermore, another five years have passed since the delegate refused the application and the applicant applied for review, and the applicant did not provide the Tribunal with information about this claim until the hearing. The Tribunal notes the applicant was asked to complete a ‘pre-hearing information form’ on 12 March 2024. A field in this form asked the applicant if they wanted to give any more information about their claims for protection, and if there were any other reasons why he was afraid to return to Malaysia. On 18 March 2024, the applicant returned to the Tribunal a copy of the sections of his protection visa application about his reasons for claiming protection (relating to the multi-level marking business). He did not provide any more information, or anything about drug dealers.
In addition, the applicant stated that when he first arrived in Sydney, he met one of the drug dealers and they had a big fight and he left for Malaysia two days later. The Tribunal queried if the applicant had run into them. The applicant said yes, at a train station, the drug dealer ran into the applicant. He recognised the applicant. The Tribunal asked what his name was. The applicant said he didn’t know but they called him [Mr B]. He told the applicant that the applicant had embarrassed the leaders and did not deserve a happy life. They fought with each other, and he let the people in Malaysia know. The Tribunal asked how the applicant knew the drug dealer left for Malaysia two days later. The applicant said he was informed by the drug dealer’s housemate and the housemate was his friend.
The Tribunal finds the applicant’s account of randomly running into one of the drug dealers in Sydney, and his evidence that his friend was the drug dealer’s housemate, to be highly coincidental and implausible. When it expressed this concern to the applicant at hearing, the applicant said he could hardly believe it himself when he ran into him. The applicant also claimed the drug dealers were still disturbing his family in Malaysia. The Tribunal asked the applicant why this was the case, given they knew he was in Australia. The applicant said he had told them he wanted to start a new life and he did not understand why they were still harassing his family. The Tribunal considers that the drug group would not be harassing the applicant’s family years after knowing he was in Australia. The Tribunal finds the applicant’s claim that this took place to be not credible, and considers that the applicant’s evidence about this event reflects poorly upon his credibility generally.
The Tribunal does not accept, having regard to the above, that the applicant was ever part of or interacted with a drug dealing group, or ever came to any harm from or suffered any threats from, a drug dealing group, and finds he would not experience this in the future.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm upon return to Malaysia, now or in the reasonably foreseeable future, nor a real risk of significant harm, because of his involvement with drug dealers.
Other matters
The applicant gave evidence at hearing that his Malaysian national wife, whom he met and married in Australia, feared harm in Malaysia from her abusive Malaysian ex-fiancé. The applicant also said he was worried about his [daughters], as the drug dealing group was not just involved in drugs but also sex trafficking, and this happened to his wife, who was forced to be a prostitute.
As explained to the applicant, the Tribunal only has the jurisdiction to consider the applicant’s protection visa application. To the extent his wife, or his children, have fears in Malaysia, these will be assessed in the context of their applications. As to any possible implied claim about the applicant personally facing a threat from the ex-fiancé, the Tribunal is not satisfied, on the limited available evidence, that he faces a real chance of serious harm or a real risk of significant harm for this reason.
Conclusion
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 under review.
Date of hearing: 3 January 2025
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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