1925774 (Refugee) - [2025] ARTA 835

1925774 (REFUGEE) [2025] ARTA 835 (10 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 1925774
Tribunal:General Member S. Zelinka
Date:10 March 2025

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

Statement made on 10 March 2025 at 10:07am
CATCHWORDS
REFUGEE – protection visa – Lebanon – fear of harm from influential former employer – overworked and underpaid – returned to employment after short break – contact from Australia and offer of re-employment on return – no supporting evidence of employer’s influence – many other suitable workplaces – religion – applicant a Muslim and employer a Christian in Christian-majority district – no claim of harm on religious grounds – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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 6 September 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 Lebanon applied for the visa on 21 February 2018. The delegate refused to grant the visa on the basis that he was not satisfied that there was a real chance that the applicant would be persecuted for one or more of the reasons set out in s 5J(1)(a) of the Act.
The applicant appeared before the Tribunal on 18 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The interpreter noted that he had the same surname as the applicant but said it was a common name and he had no connection whatsoever with the applicant and had not met him before being in the hearing room.
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
The applicant is a [Age]-year-old single man of the Sunni Islam religion from northern Lebanon. His mother, [brothers] and [sisters] remain in the home district (his father having died two years ago). The applicant left Lebanon in January 2018 and stays with his sister who left Lebanon many years ago and lives in Australia with her [sons].
The applicant first set out his claims as answers to question on the protection visa application. Essentially, the applicant claimed he was misused by his employer who overworked and underpaid him in his job as [an occupation] in the employer’s [workplace 1s]. The applicant feels that this employer will harm him if he returns to Lebanon, as the employer is from a very influential family in the area in which the applicant and his family reside.
The applicant repeated these claims with a little more detail in a statutory declaration he submitted to the Tribunal shortly before hearing. These claims were explored at hearing, as follows.
The applicant studied [subject] at a college in North Lebanon (his home area) before going to work in the capital as [an occupation] in [a workplace 1] in [City] near Beirut. He returned to his family after two and a half or three years there and a further six months’ experience in a [workplace 2] in a [facility] not far from [City]. Once home, he found work as [an occupation] with a businessman called [Mr A] who owned a number of [workplace 1s] mainly in the [District] of North Lebanon and to whom he was given an introduction by the [occupation] at the [facility]. He commenced in mid-2013 and things initially went well, with the applicant working only 20 or 25 minutes from his home.
Then [Mr A] dismissed the two staff who worked under the applicant, leaving the applicant with a great deal of extra work yet without extra pay. He complained and [Mr A] kept promising to fix the situation. He then sent the applicant to new [workplace 1s] that he opened. He convinced the applicant that he needed a car to get to these [workplace 1s] and persuaded him to take a bank loan. This was in 2016. The applicant felt he was pressured to take this loan which he could not afford and which he had to discharge by selling his car at a loss. He feels very aggrieved by the transaction which he claims was contrived by [Mr A] so that the applicant would be obliged to keep working in order to pay the loan. The applicant continued to work for [Mr A].
The Tribunal asked if he considered leaving [Mr A] and finding work elsewhere. He said that he did – that is, he once left [Mr A]’s [workplace 1] and went to Beirut. However, further questioning revealed that the applicant simply left the [workplace 1] in [District] without formally resigning and went to Beirut where he found a job in a [workplace 2] he knew of because it employed many young men from the applicant’s village on a casual basis. [Mr A] had no trouble locating him and the Beirut [workplace 2] manager told him he could no longer work there. The applicant’s time in the Beirut [workplace 2] was less than a week. The Tribunal asked him if he looked elsewhere in Beirut for employment as [an occupation], but he said he did not. He simply went home to his village.
The applicant returned to his village but did not look for work as [an occupation]. Instead, he joined a friend of his who had [a job task] business. Unfortunately, it was not a lucrative position and the applicant ran out of money. He said he had no option but to return to [Mr A]. The Tribunal put it to the applicant that [Mr A] was not the only [workplace 1 owner] in North Lebanon and that there were many other [workplace 1s] both in the city of [District] (with its [population] inhabitants) and other places such as the nearby tourist town of [Town] or the bigger city of Tripoli, capital of the region. The applicant said that [Mr A] was a powerful man, being related to the [a] clan which is a large and well-connected Maronite clan in North Lebanon.
The applicant returned of his own volition to [Mr A] in early 2017 and the latter promised to pay him better wages. [Mr A] deployed the applicant to a [workplace 1] in Tripoli, promising to pay extra money to cover the cost of taxi travel to and from the applicant’s home village. This extra money did not eventuate, nor did the medical cover which [Mr A] should have provided as an employer. The applicant said he asked [Mr A] for the proper wages and conditions, including some extra staff as this was a large [workplace 1] and the applicant needed more assistants. [Mr A] would promise to do these things but did not do so. When the applicant complained at home to his family, they advised him not to stand up to [Mr A] as it may be dangerous. The family said that [Mr A] came from [District] which was a Christian stronghold and ‘[District] people have influence’. The applicant and his family apparently believed that [Mr A] could organise serious harm to befall the applicant if he crossed this man. The words the applicant used in his written statement were: “I know that my employer and his family will get rid of me and I could not open my mouth”.
The applicant continued, underpaid and overworked, for another year and then came to Australia where he has a sister. From Australia, he rang [Mr A] and asked for his back-pay. [Mr A] said he had employed another [occupation] in the applicant’s stead but nevertheless he would still re-employ the applicant if he returned to Lebanon: they would start afresh. He said that [Mr A] wanted him as he knew the applicant was a skilled and hard-working [occupation] who could handle different [products].
The Tribunal asked the applicant if before departing Lebanon he had considered hiring a lawyer to pursue [Mr A] for moneys owing – perhaps using the money he had put together for the plane fare. The applicant said he had not considered doing this as he did not have the money to pay a lawyer and in any case it would not do any good.
The Tribunal noted that it was seven years since the applicant last worked for [Mr A]. It asked him why he could not return to North Lebanon and look for work in any other [workplace 1 or 2] not owned by [Mr A] – of which the Tribunal suggested there were hundreds. The applicant replied that he was paranoid about [Mr A]: he believes that [Mr A] would find out if the applicant had returned and that he ([Mr A]) might kill him. The Tribunal put it to him that if [Mr A] valued the applicant’s skills, as the applicant himself had stated, then it was pointless to kill him. The applicant’s value to [Mr A] was in being alive and being exploitable. In any case, the Tribunal put it to the applicant, it was difficult to accept that [Mr A] could simply go around ordering people to be killed for no particular reason. There was no information that suggested that such a state of affairs existed in North Lebanon. The applicant replied that he (the applicant) was from a modest family and that [Mr A] is very powerful; and that North Lebanon is a very chaotic place.
The Tribunal asked the applicant if he had heard of [Mr A] since the time he phoned him nearly seven years ago. The applicant replied that his cousin was also [an occupation] and had also worked for [Mr A]. In fact, the cousin had entered [Mr A]’s [workplace 1] in 2017 when the applicant was still there and the applicant trained his cousin who remained there after the applicant’s departure. He said he stopped contacting his cousin about a year ago but he still hears news that the cousin has relayed to the applicant’s mother. Apparently his cousin is also overworked and underpaid by [Mr A] and wants to leave but [Mr A] won’t let him. The applicant’s mother still tells him to stay in Australia and that if he returned, [Mr A] would get him.
With regard to these apparent threats – the applicant voicing a fear that [Mr A] might kill him – the Tribunal put it to the applicant that he had worked with [Mr A] for nearly six years (2013 – 2017 inclusive) and in that time he had never been harmed, excluding overwork and underpayment from the definition of harm. The applicant said that during the time of his employment, he tried to get away but he always went back to [Mr A].
The Tribunal reminded the applicant that it had discussed with him the definition of refugee and the requirement that the applicant had to fear serious harm for one of five particular reasons: race, religion, nationality, political opinion or membership of a particular social group. It put it to the applicant that the harm he feared was harm at the hands of his employer for reasons relating to employment conditions; and that this did not seem to satisfy the requirements of the Act. The applicant did not respond to this point, saying that the Tribunal needed to do what was lawful. However, the representative addressed this point.
The representative said that Lebanon worked on a system of connections – who knew whom, how one could be introduced to someone who could then get something done. He said that in these circumstances, the State was less relevant. That is, a reliance on State protection was misplaced. He also noted that the applicant was a Sunni Muslim and that [Mr A] was a Christian and that perhaps there was a sectarian issue involved. No evidence or testimony was advanced to support this supposition.
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 decision under review should be affirmed.
On the basis of the applicant’s passport, and from his testimony which indicated that he knew Lebanon well, particularly the north, the Tribunal finds that the applicant is a national of Lebanon and that Lebanon is the receiving country in this case.
The Tribunal accepts the following facts of the case as the applicant has consistently presented them: that is, that he trained as [an occupation] and worked for six months at a [workplace 2] near Beirut; that in 2013 he returned to his home in the Akkar Governate in the very north of Lebanon and entered the employment of [Mr A] who owns several [workplace 1s] in [District] and Tripoli, both in the North Governate to the south of Akkar. The Tribunal accepts that [Mr A] exploited the applicant, a wiling worker, in a number of ways: he reduced the number of kitchen staff answerable to the applicant who then had to do extra work; he did not pay promised increases or bonuses such as the promised travel allowance; and he was sometimes late in paying the applicant causing back pay to accumulate.
The Tribunal accepts that the applicant left [Mr A]’s employment in 2016 without notifying the employer and went to Beirut to a [workplace 2] which employed casual staff from his village. Within a week [Mr A] had found where the applicant was, due to the flow of conversation from the [workplace 2] staff back to their home villages in the north and to the staff of [workplace 1s] owned by [Mr A]. The [workplace 2] manager told the applicant he could not work there any more: the applicant assumes that this was at the request of [Mr A]. The Tribunal accepts that there are many informal networks operating in Lebanon which may supplement or even supersede more formal pathways to employment or services applicable in other countries. However, the fact that the applicant has only taken work from people he knows does not mean that there are no other avenues for finding employment. As the Tribunal put it to the applicant, there are many, many [workplace 1s and 2s] requiring [occupation]s beyond the handful of [workplace 1s] that [Mr A] owns.
The Tribunal accepts that the applicant returned to his village sometime in 2016 and did not resume his employment with [Mr A], but worked with a friend in an unrelated business. The Tribunal notes that the applicant was at home in his own village, not in hiding, and was not approached or harmed by [Mr A] over a period of some months. The Tribunal further notes that the applicant, on his own admission, approached [Mr A] for re-employment and the latter was apparently was happy to have him back and offered a big new start. There are no claims, nor does the evidence suggest, that there was anything acrimonious about the reunion nor that [Mr A] displayed any ill-will towards the applicant.
The Tribunal accepts that the last contact the applicant had with [Mr A] was a phone call made by the applicant after his arrival in Australia in early 2018 and that [Mr A] said that he would not pay the applicant the money he said was owing but that he ([Mr A]) would re-employ him if he returned to Lebanon and they would “start afresh”.
The Tribunal finds that [Mr A] exploited the applicant in the workplace but that the harm so caused does not reach the level of serious harm amounting to persecution. The Tribunal finds that [Mr A] did not attempt to harm the applicant outside of the work place. There are no claims, nor does the evidence suggest, that [Mr A] went after him, or sent people after him, when the applicant left his employ. The Tribunal notes that by his own admission it was the applicant who returned to [Mr A] of his own volition. The applicant’s view that he had no choice other than to return reflects only a subjective fear unsupported by factual events.
The Tribunal has already accepted that informal networks operate in Lebanon and it also accepts that there are people who are known to be influential. The applicant and his family clearly believe that [Mr A] is such a person and they believe that they should not cross him, even though it means putting up with poor conditions. However, in six years, the applicant did not suffered serious harm amounting to persecution at the hands of [Mr A] nor from any other source.
The applicant noted that he and his family are Suni Muslim whereas [Mr A] was Christian. He also asserted that Christians from [District] are very powerful. The Tribunal notes that Lebanon has not conducted a census for some time but the CIA World Factbook estimates the religious make-up of the country in 2020 as being about 68% Muslim (almost evenly split between Shia and Sunni) and 32% Christian, the Maronites being the largest group.[1] The religions are not spread evenly across the country: there are substantial Christian populations in the south and east of the North Governorate, in the capital of the Beka’a Governorate, and in Beirut Governorate.[2] Even within one governate, there are distinct clusters: for example [District] is almost entirely Christian whereas in Tripoli, less than [Distance] kms away, Christians make up only five per cent of the population.[3]
[1] CIA, The World Factbook: Lebanon, DFAT, Country Information Report: Lebanon, para. 3.19
[3] “Tripoli Christians: A Small Community, a bridge of dialogue, openness and coexistence”, Asia News IT, 5 March 2019, a-small-community-a bridge of dialogue, openness and coexistence-46915.html

There are no claims, nor does the evidence suggest, that [Mr A] abused the applicant in religious terms, or insulted his religion, or forced the applicant to do things contrary to his religion. It seems that the applicant, in referring to [Mr A]’s Christianity, is referring again to his position of power, given that [District] is a Christian stronghold and the birthplace of some who have occupied powerful positions such as President of Lebanon or Archbishop of the Maronite Church. The applicant perceived [Mr A],as being powerful due to his association with [District] Christians and assumed as a result of this perception that [Mr A] was in a position to do him harm if he didn’t obey.
However, as set out in paragraphs 32 and 33 above, [Mr A] did not inflict serious harm amounting to persecution on the applicant during the five years in which they were closely associated. The applicant might believe that this was because he did not disobey [Mr A]. However, on his own testimony, he argued on occasions with [Mr A] who then spoke in conciliatory tones, although often not fulfilling what he promised. The applicant also walked out on [Mr A] in 2016 and no harm befell him. He returned to [Mr A] of his own volition some months later.
The evidence does not support the applicant’s contention that [Mr A], as a ‘powerful Christian from [District]’, could simply ‘get’ him or ‘kill him’. DFAT assesses that Lebanese authorities are generally committed to preventing violence between religious communities.[4] With regard to the applicant’s own religion, DFAT assesses that members of recognised religious groups such as Sunnis who reside in areas where they are a minority may experience low-level societal discrimination but this is unlikely to include violence.[5] The applicant does not reside in an area in which his religion is the minority one. [Mr A]’s [workplace 1s] in which he worked between 2013 and 2016 were in and around [District] but the [workplace 1] in which he worked for [Mr A] during 2017 was in Tripoli, a very predominantly Muslim city (see paragraph 34 above). There is no evidence to indicate that either [Mr A]’s or the applicant’s religion was a factor in the relationship between the two or had any particular bearing on [Mr A]’s exploitation of the applicant.
[4] DFAT, op.cit., para.3.22
[5] DFAT, op.cit., para.3.23
Despite not suffering serious harm for six years whilst in the vicinity of [Mr A], and despite not having worked for [Mr A] for the last seven years, the applicant claims that he fears that [Mr A] might kill him if he were to return to Lebanon. This contradicts all the past evidence: whenever the applicant remonstrated with [Mr A] over his conditions, and on the occasion he returned to [Mr A] after having left him, [Mr A] has always offered new opportunities (such as a new [workplace 1]) and said they will make a new start. [Mr A] in the phone call the applicant made from Australia has also offered to re-employ the applicant and make a fresh start if he were to return to Lebanon. There is nothing before the Tribunal which indicates any intention on the part of [Mr A] to harm the applicant if he were to see him again: on the contrary, he wants to re-employ him, no doubt because the applicant has shown in the past that he is a good worker and can be exploited.
On all the evidence before it, the Tribunal finds that the applicant has not suffered serious harm that could be called persecution in the past at the hands of [Mr A] or anyone else. It finds that there is no real chance that serious harm amounting to persecution will befall the applicant in the reasonably foreseeable future at the hands of [Mr A] or any other source for any of the reasons set out in s 5J(1)(a) of the Act.
The applicant’s fear is a subjective one – he said himself he was paranoid about [Mr A]. However, to be well-founded, there must be an objective component that supports a fear of persecution and this is missing in the applicant’s case. There is only an unsubstantiated fear based on what the family believe a “powerful person” can do. There has been no evidence put forward that [Mr A] is a “powerful person” apart from the assertion that he owns several [workplace 1s] and that he is related to one of the known important families of [District]. Nor has there been an evidence put forward that an influential or powerful person can simply order or arrange the getting rid of an ordinary person for no reason in North Lebanon in the current day.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution as set out in s 5J(1). It finds he does not meet the definition of refugee in s 5H(1). It follows that he does not meet the refugee criterion in s 36(2)(a) of the Act.
Complementary protection
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 ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion.[6] The Tribunal must be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that they will suffer significant harm.
[6] MIAC v SZQRB [2013] FCAFC 33.
The Tribunal has already found that there is no real chance of serious harm as nothing of that kind happened in six years and there are no threats as to future harm. The arguments above were related to serious harm but the harm being considered under complementary protection is significant harm. The Tribunal has accepted that the applicant worked long hours with insufficient assistance and that his employer was cavalier with respect to payment. However, these conditions, although unwelcome, do not equate to significant harm as described at s 36(2A) of the Act. The applicant and his representative also suggested that there might be harm because of the different religions of the applicant and his employer, but as the Tribunal has set out in paragraph 35-37 above, it is not satisfied that serious or significant harm has befallen the applicant for reason of his religion or would do so in the reasonably foreseeable future. In looking at all the evidence, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if he goes back to Lebanon.
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.
Hearing:18 February 2024
Representative:  Ms Myrna Mallouk
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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