1920900 (Refugee) - [2025] ARTA 769

1920900 (Refugee) [2025] ARTA 769 (28 March 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 1920900
Tribunal:General Member M Stratos
Date:28 March 2025

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

Statement made on 28 March 2025 at 12:35pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – borrowed from unlicenced money lender – followed, threatened and beaten – new claim made at hearing – business dispute – fear of harm from business customer with gangster connections – no approach or harm, and no documentation provided – application completed by agent without applicant’s knowledge of contents – adverse inference for late claim – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
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 15 July 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 19 June 2019. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
On 30 July 2019 the applicant lodged an application for review with the Administrative Appeals Tribunal (the AAT).
On 14 October 2024, the AAT became 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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 27 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted primarily in English, with the assistance of an interpreter in the Cantonese and English languages.
BACKGROUND
The applicant is a [Age]-year-old Chinese Malaysian of the Catholic faith born and raised in Sandakan, Sabah, Malaysia. He completed his high school education in [Year] and studied in Kuala Lumpur and [Country 1] as [an occupation]. He lived in [Country 1] for five years and briefly stayed in [Country 2] before returning to Malaysia in 2009 to start his own business. He is married with two children, who reside with his parents in Sandakan. The applicant departed Malaysia for Australia [in] March 2019 and applied for a protection visa on 19 June 2019.
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.
Evidence before the Department
In the applicant’s protection visa application, the following statement was provided:
I took a loan a few years ago. I had nowhere to turn to. A friend suggested me to get help from unlicensed money lender. I had to go through the normal process when borrowing. The following day we went to the loan office and took the cash. Immediately an amount was deducted for advance payment. We were told repayment must be prompt. If that was not done the interest would increase. After that I got back on track again, but thing really went south after few months. Hell began for me. I was been follow everywhere, was been beaten and I can’t handle this anymore are scared anything could happen to me.
They may attack me again and I will live a insecure life.
I was been beaten and worried about my safety.
I didn’t seek help because scare about them.
I didn’t try to move around due to lack of finance.
They may attack me again.
I don’t think to relocated for time being.
The applicant was not invited to an interview with the Department. No further information was provided by the applicant.
By decision dated 15 July 2019 the delegate refused to grant the applicant a protection visa. The delegate was satisfied that there were effective protection measures available to the applicant in Malaysia. It was therefore held the applicant did not meet the criteria to find he had a well-founded fear of persecution or that there was a real risk of significant harm upon a return to Malaysia.
Evidence before the Tribunal
On 30 July 2019 the applicant applied to the AAT for review of the delegate’s decision. In his Pre-Hearing Information form dated 12 April 2024, the applicant further outlined his claim for protection:
I have came to Australia due to the fact that I owe the finance companies a lot of money, and had no means of repaying them.
Because of that they have sent people over to my residence to threaten me and my family and had also cause some harm to me back then.
I was asked by my family back then to leave the country in order to safeguard everyone's safety and I had therefore chose to leave the country.
I had made police reports back then, however the police was unable to assist me and my family, they even told me leaving the country would have been a better choice.
I am very afraid to go back to Malaysia as I know they are still looking for me and I know if I were to go back, they will once again do harm to me and my family.
Applicant’s Evidence at the Hearing
The applicant claimed to have owned and operated several businesses in Sandakan, Sabah from 2009. He ran a [workplace 1], and also a business trading in [produce] such as [examples] to companies in [Country 3]. He also owned a [company] for approximately one year specialising in [doing job task 2].
From 2009 to August 2018 the applicant’s businesses had been performing well without incident. In late August 2018 he fulfilled an order for a customer in [Country 3] referred to as ‘the [Nickname]’ due to his government contacts. The [Nickname] had been buying products from the applicant for about two years prior to this date. This August 2018 order was for [produce] worth 2 million RM[1]. The [Nickname] paid the money upfront for the order, in accordance with their usual arrangement. The applicant packed the order as required into a ferry at the docks, signed the produce over to the ferry operator who completed a form to say they had received the goods. The ferry operator left Sandakan for [Country 3] with the goods aboard the ferry.
[1] Approximately $716,000 AUD as at March 2025
The applicant received a telephone call from an agent of the [Nickname], stating the goods had not arrived in [Country 3]. The applicant advised he had put the produce on the ferry and a quarrel ensued. The applicant thereafter called the [Nickname] to explain that his stock had been put on the ferry, and sent him the document confirming the ferry operator had signed for the stock.
The [Nickname] called him back to confirm the stock had not arrived and demanded the applicant either pay him back or provide another shipment of stock. The applicant disputed this and advised repayment or another shipment was impossible. The [Nickname] then threatened him that if he did not pay he should ’take care’. The applicant, on the advice of his colleagues and family, tried to negotiate a repayment of 1 million RM[2] to settle the dispute, but the [Nickname] did not agree to these terms.
[2] Approximately $358,300 AUD as at March 2025
Despite the threat made by the [Nickname] that he should ‘take care’, the applicant confirmed in evidence at the hearing that the [Nickname] never contacted him again, and nor was he or any members of his family ever approached or contacted by agents of the [Nickname].
The applicant was asked what he thought had happened to the stock. He considered the [Nickname] had received it but was looking to cheat the applicant. The applicant stated he made a police report in Sandakan in September 2018, but was told because the problem occurred in [Country 3] there was nothing the Malaysian police could do to assist.
The applicant stated he was scared as to what the [Nickname] might do to him, as he was aware through business associates that he had gangster connections. He was concerned any gangster could easily slip into Sandakan from [Country 3] with guns, and quickly leave without raising suspicions. The applicant decided to try to negotiate to pay off the [Nickname] to avoid harm and so sold one of his houses to a friend two weeks after the August 2018 incident for 830,000RM[3]. His friend, having these funds available immediately, forwarded the money directly to the [Nickname] through a transfer made by an intermediary. The applicant stated that this friend had recently died so considered it would be difficult to obtain evidence about this transaction.
[3] Approximately $297,400 AUD as at March 2025
Similarly, within six weeks of the August 2018 event, the applicant closed the produce business, paying customers back for any outstanding or unfulfilled orders. He sold his [workplace 1] business in late 2018 for 150,000RM[4] in a cash transaction and kept half this amount for his family and paid the other half to the [Nickname] by cash through an intermediary. There are no records of this payment.
[4] Approximately $54,000 AUD as at March 2025
By late 2018 the applicant had left Sandakan for Kuala Lumpur out of fear of the [Nickname] or his agents discovering his whereabouts and causing him harm. He changed his telephone details and stayed with a friend. Neither the [Nickname] nor his associates contacted him in person or by telephone once he moved to Kuala Lumpur, as they were unable to find the applicant. He attended upon another friend who was a government official working with Malaysian police for advice about what options were available to the applicant for protection, but was again told there was no assistance they could offer.
The applicant claimed the [Nickname] has been looking for him since 2018, yet he confirmed he had not been contacted by the [Nickname] or his agents since the August 2018 incident, either in Sandakan, Kuala Lumpur or Australia. The applicant advised that only his family knows he is in Australia. When asked how he was aware of the agent’s continued searches, the applicant stated his business associates from [Country 3] know the [Nickname] and his people, and they have warned his wife who remains in Sandakan that she should be careful. They have spoken to her about this as recently as two weeks prior to the hearing. He could not say how regularly these warnings were given. The applicant could not be any more specific in relation to the frequency or the information given as part of these warnings.
The applicant stated he had left his business records behind in Malaysia, and although he was provided with an opportunity post-hearing to provide any further documentation, none was forthcoming by the due date of 21 March 2025. The applicant also stated he had brought relevant business documents and police reports with him when he travelled to Australia, but they were lost when his friend’s car was stolen with the documents inside. The applicant advised his friend did not report the theft of the car to the police and thus there are no records available of police reports or relevant business documents.
His wife and children ([ages]) remain living in Sandakan with the applicant’s parents. Although his wife used to work to support the family in sales, she has not worked outside the home for the last two years as she looks after the family. His parents remain employed and the family uses savings left by the applicant to support themselves. The applicant on occasion sends money home to assist, although the amount and frequency depends on his earnings in Australia. He has a sister who lives in Kuala Lumpur. The applicant has been working on a [workplace 2] since his arrival in Australia, although he was unable to work for about a year while recovering from a [body part] condition and resulting surgery.
The applicant feared that upon a return to Malaysia he would be found by the [Nickname] or his agents and physically harmed. He considered he could not relocate because Sandakan was his home, they would locate him wherever he lived as a result of his associates spreading word of his return, and they could harm him without being caught as they could easily enter and leave Sandakan by boat due to its proximity to [Country 3].
REASONS AND FINDINGS
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and Receiving Country
The applicant claims to be a citizen of Malaysia and no other country. A copy of his passport was provided to the Department, and the delegate was satisfied with its authenticity and the applicant’s identity. The Tribunal has no information to question the validity of this information. The Tribunal is satisfied of the authenticity of the applicant’s passport and that the applicant is a Malaysian citizen. The Tribunal is satisfied that Malaysia is the receiving country for the purpose of assessing claims against the refugee and complementary protection criteria.
Does the applicant satisfy the refugee criterion for protection?
To meet the refugee criterion pursuant to the Act, the Applicant must demonstrate he has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and that there is a real chance, if he returned to Malaysia, he would be persecuted for one or more of those reasons. Persecution must involve serious harm to the applicant and systemic and discriminatory conduct.
A real chance is a substantial chance, as distinct from remote[5]. Generally, to assess what is likely to occur in the future requires findings as to what occurred in the past, as although past events may not be a certain guide as to the future, proof of past events can provide a reliable or rational basis for determining the chance of their occurrence[6].
[5] Chan v MIEA (1989) 169 CLR 379 at 389
[6] MIEA v Guo (1997) 191 CLR 559 at 574
Concerns with the Applicant’s Evidence
The Tribunal raised several concerns with the applicant regarding his evidence. Section 367A of the Act outlines that where an applicant in a review of a protection decision raises a claim or presents evidence that was not presented before the delegate made their decision, the Tribunal is to draw an adverse inference unfavourable to the credibility of the claim or evidence if satisfied the applicant does not have a reasonable explanation why the claim was not raised, or evidence presented, before the primary decision was made.
The claim raised in the applicant’s protection visa application concerned a fear of harm from unlicensed money lenders as a result of unpaid debts. The claim proposed in the applicant’s pre-hearing information response dated 12 April 2024 outlined a fear of harm as a result of threats and violence from agents of finance companies to whom the applicant has large outstanding debts.
The applicant confirmed when he first arrived in Australia he hoped to obtain a working visa, but was advised by an agent such permits were difficult to obtain and that he should seek a protection visa instead. The applicant was definite in his recollection that he relayed his history surrounding the August 2018 business interaction to this agent, but the agent advised him that it was not a powerful enough story and he would write the claim for the applicant. The agent completed the form and the applicant stated he did not know what was in it.
The Tribunal is not satisfied that a lack of knowledge as to what was written in one’s own visa application is a reasonable explanation in this instance as to why the applicant did not raise his claim or provide evidence regarding the 2018 business interaction. The Tribunal heard evidence from the applicant that the agent assisting him suggested he needed a better story to qualify for the visa, and the applicant thereafter allowed his agent to complete the form. Regardless of whether he was aware of what his agent had written, the applicant nonetheless permitted his agent to write a more powerful story in an effort to qualify for a protection visa.

A similar story was then repeated in his April 2024 pre-hearing information form filed with the Tribunal. The information provided therein did not reflect the history given by the applicant at the hearing, in that it claimed the applicant had been approached at his residence, threatened and harmed by people connected to finance companies to whom he owed money. The applicant confirmed in evidence that he was never approached, threatened or physically harmed by anyone connected to the August 2018 incident, other than one conversation with the [Nickname] where he advised the applicant to ‘take care’.
The Tribunal shared a concern with the applicant regarding the lack of any corroborative documentation regarding the transaction that occurred in 2018. The applicant stated business records remained in Malaysia, but although he was provided with an opportunity to file further evidence of this nature, no evidence was forthcoming. The applicant explained that although he had brought relevant documents with him to Australia, they were lost when the car such documents were in was stolen. It appeared unusual to the Tribunal that no police report was made by the owner of the car, but the applicant confirmed this was the case.
There were other uncorroborated transactions that caused the Tribunal to question the credibility of the history of events provided by the applicant. It would be expected that documents attesting to the sale of a house and a business would be available, as would there be a record of the flow of monies both in and out regarding such transactions. The applicant explained that due to the death of the friend who purchased his house, documents could no longer be obtained in relation to this transaction, and as the friend paid the money directly to the [Nickname] on behalf of the applicant, the applicant never had access to records relating to that flow of money. The sale of the [workplace 1] business was said to have been for cash and thus there would be no bank records following this sale.
Despite claiming that he made a police report in 2018, the applicant did not have any record of having attended police at that time. A second attendance for assistance was in 2019 with a friend in Kuala Lumpur who was a government official, so no formal report was made or therefore available.
It was not only the lack of corroborative documentation that caused concerns for the credibility of the evidence. There were elements of the applicant’s history of events that taken all together caused the Tribunal to question the credibility of such history. Evidence was given that despite having done business with the [Nickname] for several years before this incident, the applicant had not been aware of any gangster connections, and he only become aware of such connections after the incident occurred. The only threat made by the [Nickname] was said to have been in one conversation to ‘take care’, and none of his associates ever approached the applicant. The speed in which the applicant then determined he needed to shut down his business, sell assets and move to Kuala Lumpur occurred within weeks, despite the warnings regarding his safety coming from his own friends rather than anyone who would seek to do him harm. The speed in which he claimed to sell his house for 830,000RM was of concern to the Tribunal, as was the applicant using those proceeds to pay off the [Nickname] when the applicant claimed the [Nickname] had cheated him.
The Tribunal is mindful of the difficulties faced by applicants giving evidence about events that occurred many years ago. Memories fade, difficult or upsetting events can be painful to recall, the use of interpreters can affect the quality of understanding and a Tribunal hearing can be a stressful environment.
In isolation, a lack of corroborative evidence would not necessarily cause the credibility of evidence to be called into question. However, taken in its totality, the lack of any documentation in relation to such a professional business operation and the reasons posited for same, the inability of any financial transaction to be evidenced, and the speed in which the applicant claimed to have acted to shield himself from harm in a situation where he had received one direct but vague threat and was never thereafter approached by anyone connected with the [Nickname], leads the Tribunal to reach a conclusion that the evidence regarding August 2018 and events thereafter is not reliable.
Given these concerns raised by the Tribunal with the applicant’s evidence, coupled with the lack of satisfaction as to a reasonable explanation as to why the applicant did not raise the claim advanced at hearing before the primary decision was made, leads the Tribunal to draw an inference unfavourable to the credibility of the evidence provided.
The Tribunal is prepared to accept the applicant owned and ran his own businesses in Malaysia. However, the Tribunal does not accept that in August 2018 there was an incident whereby a customer claimed to have not received stock that the applicant put on a ferry for delivery. The Tribunal does not accept that the August 2018 incident occurred at all. The Tribunal finds that neither the applicant nor his family have been threatened by any customer or their agents at any time. The Tribunal finds the applicant did not sell a house and business for the purpose of paying the proceeds to a customer to satisfy a demand for payment. The Tribunal finds the applicant has not attended upon police to seek any assistance in relation to demands from a customer. The Tribunal finds the applicant and his family have not been the subject of ongoing warnings since 2018 to look out for their safety whether through associates of a customer or from friends.
For the reasons given above, the Tribunal finds the applicant will not be threatened or harmed in any way by any customer or their agents now or in the reasonably foreseeable future if he were returned to Malaysia. The Tribunal is therefore not satisfied there is a real chance that any person or group will seek to harm the applicant because of any business dispute now or in the reasonably foreseeable future should he return to Malaysia.
The applicant confirmed at the hearing that his fear in returning to Malaysia was not based on a history of having borrowed money from an unlicensed money lender who thereafter assaulted him, as outlined in his protection visa application of 2019 and his pre-hearing information form of 2024. The applicant confirmed in evidence that he was not agitating such a claim. Accordingly, the Tribunal finds the applicant did not borrow money from an unlicensed lender in Malaysia, and therefore there is no harm the applicant would suffer now or in the reasonably foreseeable future upon a return to Malaysia as a result of an unpaid loan owing to an unlicensed money lender. Accordingly, the Tribunal is not satisfied there is a real chance the applicant will face serious harm now or in the reasonably foreseeable future upon a return to Malaysia as a result of violence from unlicensed money lenders.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) of the Act for a protection visa.
Does the applicant satisfy the complementary protection criterion for protection?
As the Tribunal has found the applicant is not a person for whom Australia has protection obligations as a refugee under s 36(2)(a) of the Act, the Tribunal must then consider whether he meets the complementary protection criteria under s 36(2)(aa) of the Act. The applicant will satisfy those criteria if the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm.
In the decision of MIAC v SZQRB [2013] FCAFC 33, it was held that the ‘real risk’ test in respect of complementary protection obligations imposes the same standard as the ‘real chance’ test as required to determine a person meets the refugee criteria. For the reasons set out above, the Tribunal is not satisfied there is a real chance the applicant will suffer harm if returned to Malaysia. As the Tribunal has found there is no harm the applicant will suffer from a disgruntled customer or money lender, it therefore follows the Tribunal finds there is no real risk the applicant will suffer significant harm if he were to return to Malaysia.
Accordingly, the Tribunal does not have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm.
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 not to grant the applicant a protection visa.
Date of Hearing: 27 February 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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