1923012 (Refugee) - [2025] ARTA 1405

1923012 (REFUGEE) [2025] ARTA 1405 (12 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 1923012
Tribunal:General Member S. Zelinka
Date:12 March 2025

Place:Sydney
Decision:The Tribunal sets aside and remits the application for a protections visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Act.

Statement made on 12 March 2025 at 4:36pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – race – Tareen – political opinion – a supporter of the Pastun Tahafuz Movement – an active member of the Pashtun Tahafuz Movement – applicant has a well-founded fear of persecution – fear of persecution on the basis of his political opinion is well-founded – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65,499
Migration Regulations 1994, 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 18 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
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), 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.
The applicant who claims to be a national of Pakistan applied for the visa on 14 May 2018. The delegate refused to grant the visa on the basis that that the applicant did not have a profile of interest to the Pakistani authorities; the delegate was not satisfied that the applicant had a well-founded fear of persecution for reason of political opinion, or any other reason.
The applicant appeared before the Tribunal on 3 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [A], the applicant's witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is a [age]-year-old man from Khyber Paktunkhwa (KPK) Province in Pakistan. His ethnicity is Tareen, one of the Pashtun tribes. He has been in Australia since 2013, originally as a student, and returned to Pakistan for five weeks in January-February 2018 for family matters including his wedding. He has been in Australia since returning from that trip (his wife did not accompany him) and three months later he applied for protection.
Claims
The applicant’s claims were initially set out in a statement which accompanied his protection visa application. He claimed that he was a supporter of the Pastun Tahafuz Movement (PTM) which is strong in KPK: his family were also supporters of the PTM. When he returned to Pakistan in early 2018, he went to Islamabad with his brother and brother-in-law and got into a fight with a group of people who took umbrage at the PTM sticker on the car. Bystanders broke up the fight. However, when they returned to the car after a couple of hours shopping, it was gone from its parking spot. They saw four soldiers nearby who said that they got what they deserved for supporting Pashtuns, referring to the sticker. The applicant swore at the soldiers who pushed and shoved him, despite the intervention of his brother and brother-in-law, eventually pointing a gun at him. The applicant’s little group left and went to the police station to report the loss of the car and its contents, including the applicant’s wallet and a number of wedding articles which he had left in the car. He had not meant to leave his wallet there – it was simply a mistake.
They returned home without the car and the applicant’s father paid for security guards for the wedding ceremony and functions that were to follow which passed without incident. The father was worried because the army would have found the applicant’s wallet in the car he assumed they took in Islamabad and the applicant’s ID card in his wallet would have identified him and given his home address in Pakistan. A week after the wedding, the applicant went out in a car and saw an army four-wheel drive turning into his street. He quickly rang his father and warned him not to answer the door and also to hide his (the applicant’s) wife. The father finally responded to the repeated bangings on the front gate and when he answered, the soldier said he had come to return a wallet. The applicant’s father looked at it and said he did not know the man pictured on the licence and perhaps it was an old one with an old address. The soldier hit the father and forced entry into the house, where they did not find anything of note.
The applicant and his wife then stayed at his in-laws’ house in another town until the applicant returned to Australia. However, whilst still there, he and his brother-in-law attended a PTM rally in Islamabad and questioned by a police officer as to why they came to this protest. The brother-in-law answered rudely and the two were taken to the local police station where the brother-in-law received more blows from a baton before the two of them were pushed out. Since the applicant’s return to Australia, his father has told him that the police came around once in March 2018 saying he had some questions about a missing car. The father said the applicant did not live there.
The applicant fears that his name is known to the authorities in Pakistan – both the police and the army – as a supporter of the PTM and that this will cause him to suffer serious harm if he were to return.
When the applicant was interviewed by a departmental delegate in 2019, he spoke about the aims of the PTM and claimed that he had joined it in 2016 after a university friend raised the issue with him. He also said that he had been to a protest in [a location] in April 2018 which had been coordinated through [social media]. The delegate accepted that the applicant was passionate in his views about Pashtun rights and the PTM but was not satisfied that the applicant had a political profile of adverse interest to the Pakistani authorities.
To the Tribunal
Before the Tribunal hearing, the applicant submitted a statutory declaration and a submission from his representative with some witness statements, country information, and an assortment of other documents. He appeared at the hearing and spoke consistently with his written claims, as set out below.
The Tribunal asked if he took much interest in politics before he left Pakistan. He replied that he did not, being preoccupied with studying (he was doing an undergraduate degree) whilst also working. After he came to Australia, he claimed that he was informed about a Pashtun rights organisation by a friend of his from university – a friend who was still in Pakistan – and he began to follow them on social media. He set out in his statutory declaration the reasons he was attracted to this movement, the PTM.
At hearing, the Tribunal put it to him that there was no movement called PTM in 2016, the time he said he became attracted to it. The applicant quickly agreed, saying it was called the Mahsud Tahafuz Movement (MTM) initially but changed its name during the long march from Waziristan to Islamabad in early 2018 in order to embrace all Pashtuns.
By coincidence, the applicant’s arrival back in Pakistan for family reasons (his father had been ill; and the applicant himself was to be married) occurred at the same time that this ‘long march’ was eventuating. There were some public rallies in Islamabad. The applicant went to Islamabad very shortly after his arrival back in Pakistan as it was the nearest major city to his home town of [City] and he needed to obtain clothing, presents, etc. for his forthcoming wedding. He drove to Islamabad from his home (about two hours by car) with his brother and brother-in-law, the latter being the owner of the car. As a gesture of solidarity and to please the applicant, there was a sticker supporting the PTM on the car.
The applicant described the events that occurred in Islamabad in terms consistent with those he had presented in his initial statement and at the departmental interview (see paragraph 13 above). In short, they had been roughed up by people who objected to the sticker on their car; the applicant’s group had then left the car parked and gone off shopping; later, the applicant realised that he had left his wallet in the car and when he returned to get it, found the car was not where they parked it – it was nowhere to be seen. However, a group of four soldiers was waiting there, and confronted the applicant saying “Are you looking for a car?” He responded rudely and an altercation ensued, joined by the applicant’s brother and brother-in-law. One of the soldiers pointed his gun at the applicant and referred to him in rude terms as a Pashtun. It ended; they went to a local police station where the brother-in-law reported the theft of his car; and the group had to return to their home town on public transport. They all assumed that the soldiers had taken the car and gone through the contents, thereby learning the identity and Pakistan address of the applicant.
The applicant said (as he had in his statement) that his father, when told about the incident, responded by hiring security guards for the applicant’s wedding which took place very soon afterwards. Following the wedding, the applicant and his wife were going away for a short trip and in preparation the applicant left the house alone to fill the car with petrol . When he had turned out of the street at the end of which his family house was situated, he saw an army vehicle turn in. He quickly phoned his father to warn him: his father locked the gates and the applicant’s wife went to a neighbour’s. The father eventually responded to the pounding on the gate and the soldiers forced their way in. The soldier said he was returning a wallet to this address but the father stated that it must have been an old address. The soldiers did not find either the applicant or his wife in the house and left.
Some time later, the applicant and his brother-in-law went to Islamabad in order to pick up the wedding photos. There was a big sit-in from the Pashtun marchers of the long march. In the vicinity, when the applicant and his brother-in-law were moving about to buy a drink, they were confronted by a couple of policemen who took them to the small hut constructed at a check-point (not the police station as mentioned in the written statement). The policemen there were derogatory about the Pashtun demonstration and there was abusive questioning until the applicant and his brother-in-law were released about an hour later. There were no charges or other formalities, but the brother-in-law sustained some injuries from being hit.
The applicant left Pakistan on [date] February 2018 leaving his wife with her parents where she has remained since that time. Communication between them has dwindled over the intervening seven years and they have not communicated at all since August 2024.
After the applicant returned to Australia, he continued his interest in PTM through information available on social media. He attended a protest [in] Sydney in April 2018. He met the other participants: he said it was not a large group, perhaps only 30 – 50 people. There was another rally the following year which he was unable to attend but he did join the one in January 2020. However, most of the activity was on social media and the applicant joined in regularly. The applicant submitted his tickets to [an event] in 2022 and other examples of his involvement, including screen shots of letters he wrote to OCHR and to the Prime Minister of Australia (with a reply) about violations of Pashtun human rights. This activity continues to the present day. The applicant said he has become “the head of PTM Australia social media, posting news and PTM activities through the [social media] page”. He also donates money to the PTM.
The Tribunal asked the applicant if there have been any consequences for his father in Pakistan. The applicant said that the police came to the house a month after he departed Pakistan and asked for the applicant, saying that they were following up enquiries about the stolen car (see paragraph 22 above). As the car was registered in the name of the brother-in-law, the applicant’s father was suspicious about the police interest in his son and told the police that the applicant did not live there.
The applicant said that there have been several incidents involving his father and brother – the police stopping the father in his car; the police telling the brother there was an allegation of assault against him; an intruder in the house – which the applicant asserts is “pattern of harassment” for their political beliefs. In addition, his step-mother was arrested at a demonstration in support of Imran Khan, leader of the PTI party: she is a PTI activist. The applicant is no longer in touch with the brother-in-law with whom he went to Islamabad (see paragraphs 13 and 21) as the applicant’s sister has divorced him and communications have ceased.
The Tribunal asked the applicant if his activities in Australia in favour of the PTM would be known in Pakistan, noting that he obviously did not have an adverse profile in February 2018 as he departed the country without difficulty. The applicant believes that he is now known through the social media activities. He stated that the Pakistan Army’s PR wing, the DGISPR, has blocked his [social media] posts: he says that this information is on screen when the profile is accessed. He says he has also been blocked by various Pakistani Ministers to whom he has sent posts. He noted that PTM is vibrant in the Pakistani diaspora, mostly on social media, although some European countries have a real presence with offices and demonstrations. The applicant also pointed to one of his submissions which was a videocall between himself and Manzoor Pashteen, the leader of the PTM in Pakistan.
The Tribunal contacted the applicant’s witness by phone. This was [A], the organiser of the Pashtun Tahafuz Movement in Australia. However, [Mr A] had recently had [surgery] and he was speaking with some difficulty. Having established his identity and his knowledge of the applicant, the Tribunal said it would rely on his written statement rather than strain his voice further. The Tribunal has before it a written statement from [Mr A] on PTM letterhead saying that he has known the applicant since 2019, confirming the activities the applicant has undertaken, and noting that he believes the applicant would be in serious danger if he returned “given the current situation in Pakistan where PTM has been banned, its members are being illegally incarcerated, forcibly disappeared and even extrajudiciously killed”.
The applicant concluded by saying that the PTM was banned in Pakistan in October 2024 and that there have since been many human rights abuses against members, who have now gone underground.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
The Tribunal has on file a copy of the applicant’s passport plus a number of other official documents such as family registration and marriage certificate. The Tribunal finds that the applicant is a national of Pakistan and that Pakistan is the receiving country in this case.
Applicant and PTM in Pakistan
The Tribunal accepts that the applicant arrived in Pakistan on [date] January 2018 (the movement record on file shows this); that he went to Islamabad, the nearest city to his home town; and that his arrival in Islamabad coincided with a major protest being staged by the PTM. The Tribunal notes independent evidence about the formation of the PTM:
The PTM traces its roots back to 2014 when students from the Mehsud Tribe in South Waziristan launched the Mehsud Tahafuz Movement at Gomal University …In January 2018, Naqeebullah Mehsud, a 27-year-old aspiring model from South Waziristan living in Karachi, was shot and killed in a police encounter led by Rao Anwar [who] had a notorious list of extrajudicial killings and corruption … Naqeebullah’s tragic death became the tipping point for the Mehsud Tahafuz Movement propelling into a broader, nationwide Pashtun rights movement. His murder ignited a social media storm [which] helped transform the Mehsud Tahafuz Movement into the Pashtun Tahafuz Movement.[1]
[1] csohate.org/2024/11/18/Pashtun-tahafuz-movement-social-media-use/

The Tribunal also notes independent evidence from the time linking the applicant’s time in Islamabad with the expansion of the MTM into the PTM and demonstrations in Islamabad:
…a young man called Naqeebullah from South Waziristan was killed by police in an alleged ‘staged encounter’ in Karachi on 13 January. …This provided the spark for a demonstration outside the Islamabad Press Club in January. At first nobody took much notice but then numbers began to swell … After 10 days it had evolved into a movement for the liberation of Pashtun people from the tyranny of Pakistan’s security establishment. People came from far and wide for the rallies.[2]
[2] M. Ilyas Khan, “Manzoor Pashteen: the young tribesman rattling Pakistan’s army”, BBC News, 23 April 2018, bbc.com/news/world-asia-43827660.
The same BBC article also supports the applicant’s contention that the PTM was hugely reliant on social media from its beginnings:
So far there has been an almost total media blackout of PTM rallies, which attract substantial support …Despite the media blackout the PTM had been successful in getting its message over through social media with the help of a growing number of activists, mostly from areas seen as marginalised.[3]
[3] Ibid.
The Tribunal accepts that the applicant had a relatively brief encounter with the army in Islamabad in mid-January 2018 because of a PTM sticker on his brother-in-law’s car but did not at the time attract sufficient adverse attention to interfere with his departure from Pakistan a month later. Perhaps this was due to the newness of the PTM movement, which had only just changed its name from the MTM, or the fact that he and his group were not attending a rally or demonstration at the time of the encounter but were out shopping.
Applicant and PTM in Australia
The Tribunal accepts that the applicant has been an active member of the Pashtun Tahafuz Movement since the time he arrived back in Australia in 2018 until the present day. The Tribunal notes the support of the witness and a variety of screenshots over several years attesting to the applicant’s involvement. It also notes that the applicant’s evidence at hearing indicated a good knowledge of the PTM that is supported by independent country information. Based on his past behaviour, the Tribunal accepts that the applicant will continue to be an active supporter of the PTM through its Australian branch. Given his history with the PTM predating his protection visa application, the Tribunal is satisfied that the applicant did not engage in its activities simply to ground a claim for protection.
Surveillance by Pakistani authorities
The Tribunal accepts that the PTM is now banned in Pakistan, having been designated by the Pakistani government on 6 October 2024 as a ‘proscribed organisation’ under s. 11B of the Anti-Terrorism Act of 1997.[4]
[4] Asia News, “Pashtun Tahafuz Movement appeals to UN for intervention against Pakistan’s ban”, 12 October 2024, appeals-to-un-for intervention-against-pakistans-ban20241012175147/
The Tribunal looks to reliable independent evidence from DFAT to assess what whether the Pakistani authorities may be aware of the applicant’s activities in the diaspora. It notes that:
There are widespread, credible reports of human rights abuses by the Pakistani security services, including the military and intelligence services. … The security services(including the ISI, Intelligence Bureau and other agencies) operate a highly efficient surveillance state, including wire taps, spy software, and the monitoring of internet service providers (ISPs) which the government allegedly deploys against suspected terrorists, journalists, political opponents and others.[5]
[5] DFAT, Country Information Report: Pakistan, 25 January 2022, paragraphs 5.5 and 5.6
The applicant has claimed that his social media has already been blocked by the Pakistani authorities (see paragraph 29 above). This seems plausible in light of this evidence. The Tribunal is satisfied that particularly since the PTM was proscribed under anti-terrorist laws, the authorities would monitor PTM communications both within Pakistan and coming into Pakistan from its diaspora. The applicant is very active on social media about PTM isues. He has also presented evidence that he has been in communication with the head of the PMT, Manzoor Pashteen, who remains in Pakistan (see paragraph 29 above). The role of Manzoor Pashteen is described in the BBC article (footnote 2) and by DFAT (footnote 5) in its most recent report at paragraph 3.80.
Given this, the Tribunal is satisfied that the applicant will be regarded adversely by the Pakistani authorities if he were to return and that he could not avoid coming to their attention. The Tribunal again refers to DFAT advice:
DFAT assesses PTM leaders and members are at high risk of official discrimination and moderate risk of violence or enforced disappearance on the basis of their political opinion and perceived ‘anti-state’ activities. They are also at risk of violence from militant groups. Journalists, academics and others who express solidarity with PTM are also targeted.[6]
[6] DFAT, op. cit., para. 3.82.
Serious harm
The Tribunal notes that this DFAT advice was written before the PTM was actually banned and is satisfied that the risk of harm to those mentioned, and the severity of that harm, is now greater. Harm such as ‘enforced disappearance’ is serious harm of the sort described at s 5J(5) of the Act. The Tribunal also notes that the government which banned the PTM was only elected last year in 2024 and so will likely remain in power until the next election is due in May 2029. This covers the period the Tribunal refers to as the ‘reasonably foreseeable future’.
On the evidence before it, the Tribunal finds that there is a real chance that serious harm will befall the applicant in the reasonably foreseeable future if he were to return to Pakistan for reason of his PTM activism. PTM activism constitutes ‘political opinion’ in terms of the reasons set out in s 5J(1)(a) of the Act and this would be the essential and significant reason for the authorities inflicting harm on the applicant. Given that the applicant is a Pashtun and has been active in working for Pashtun rights for a number of years, it is not reasonable to expect him to hide either his ethnicity or his commitment in an attempt to avoid harm.
Furthermore, the harm the applicant fears is not limited only to his home area – the traditional Pashtun north-west area of Pakistan including KPK where he comes from. DFAT notes that:
Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP [Pakistani Taliban] has led to official discrimination and ethnic profiling. In February 2018, the Punjab Government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the forms of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs [computerised national identity card] when relocating which impedes access to property and assets. There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-ridden areas like Kybher Paktunkwha and Balochistan. … Pashtuns involved with the Pashtun Tahafuz Movement or the Awami National Party face specific, heightened risks.[7]
[7] DFAT, op. cit., para. 3.17 and 3.18
On all the evidence before it, the Tribunal finds that the applicant has a well-founded fear of persecution for one of the reasons set out in s 5J(1)(a) of the Act and meets the definition of refugee at s 5H(1).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Hearing: 3 March 2025
Representative:  Mr Mahalingam Sutharshan (MARN: 0961664)
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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