1928935 (Refugee) - [2024] ARTA 863

1928935 (Refugee) [2024] ARTA 863 (11 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1928935

Tribunal:General Member S Manera
Date:11 December 2024

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 11 December 2024 at 2:51pm

CATCHWORDS
REFUGEE – protection visa – Malaysia race – ethnic Chinese – particular social group – lesbian – victim of loan sharks – fear of killing – physical assault – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 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

On 14 October 2024, the Administrative Appeals Tribunal (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.
This is an application for review of a decision made by a delegate of the Minister for Minister for Immigration and Multicultural Affairs on 8 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant, who is [an age]-year-old woman and claims to be a national of Malaysia, applied for the visa on 8 September 2019.
Evidence before the Department
In her protection visa application form, the applicant submitted as follows:
·she is in debt in Malaysia for a lot of money. She has been pursued for repayment of the debt;
·she fears she will be killed or tortured;
·she is not in contact with her friends and relatives, and they cannot assist her;
·she moved to many places within Malaysia, however her creditor can still find her;
·the local authorities cannot protect her.
The applicant was not invited to attend an interview to discuss her claims for protection.
The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
Evidence before the Tribunal
On 15 April 2024 the applicant provided the Tribunal with a completed pre-hearing information form. In this form she stated as follows:
·as a Chinese Malaysian she has faced a lot of difficulty and racism in Malaysia. She did not have the chance to go far with her education and career and she had to start working from a young age;
·she is a lesbian. Her family chooses not to associate with her because they don’t understand her;
·she has lived an excluded life in Malaysia and got involved with loan sharks. She was drawn to an advertisement for an interest-free loan at a time when she was struggling to pay her rent. The loan was presented to her as a 3-month interest-free loan with a flexible payoff option. However, when she signed up for the loan, she found herself locked into a 30-year loan with very high interest rates and a principal amount of MYR [amount]. She was required to pay the interest for 30 years upfront in order to end the contract. She went to the police but they did not assist her as they said she had to abide by the terms of the contract;
·the applicant was threatened with her life when the loan shark found out that she had approached the police;
·the applicant suspects there is corruption within the local authorities;
·the applicant was hit hard and told that lesbians should go to hell. “They” said they would force her into dirty work such as selling her body if she could not repay the loan. She was also told that “they” have branches everywhere in Malaysia there was no where she could run to;
·the applicant tried to move to other places, but the loan shark boss always managed to find her;
·when the applicant came to Australia she no longer hid her sexual preference. She started to realise that she should not be afraid to disclose a sexual preference. In Malaysia she always suppressed her identity.
On 23 April 2024 the applicant provided the following documents to the Tribunal:
·identity documents including passport, national ID card and birth certificate;
·bundle of news articles regarding the treatment of members of the LGBTQIA+ community in Malaysia;
·Human Rights Watch news article on the freedom of expression in Malaysia;
·bundle of 3 photographs of the applicant, showing injuries received;
·bundle of screenshots of Facebook groups of which the applicant is purportedly a member;
·copy of the applicant’s [Bank 1] statement;
·undated and unsigned document in the Mandarin, English and Malay languages, stating that the applicant owes money to pay;
·screenshot of an undated text message in Mandarin (no English translation provided).
The applicant appeared before the Tribunal on 28 October 2024 and 13 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Partner A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
On 12 November 2024 the applicant provided the Tribunal with a statutory declaration from her partner and a bundle of 13 letters from friends in Australia confirming they are aware of the applicant’s relationship with her partner.
On 14 November 2024 the applicant was invited under s 359A of the Act to comment on adverse information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The applicant was notified that information in her Movement Details was inconsistent with aspects of her oral evidence, and may undermine the credibility of her claims and may lead the Tribunal to find that she does not face a real chance or real risk of serious or significant harm if returned to Malaysia.
On 26 November 2024 the applicant responded to the s 359A invitation and also provided a number of documents in support of her genuine relationship with her partner, including a statutory declaration commenting on the adverse information, evidence of living with her partner, photos of the applicant and her partner with others in social situations, and copies of receipts for gifts purchased for her partner.
On 29 November 2024 the Tribunal wrote to the applicant and advised that it had concerns regarding 2 of the gift receipts provided to the Tribunal, as they contained spelling errors, and may indicate that the receipts were not genuinely issued by the retail store which they were purportedly from.
On 4 December 2024 the applicant responded to the Tribunal’s email and provided evidence regarding the claimed authenticity of the gift receipts provided, and further evidence in support of her genuine relationship with [Partner A].
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.
Nationality
In her application for a protection visa, the applicant claims to be a citizen of Malaysia.
The applicant provided a scanned colour copy of her passport bio-data page in support of the protection visa application. The issuing authority is [named]. The applicant also provided a scanned colour copy of her Malaysian identity card.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Malaysia, and as such her protection claims will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.
REASONS AND FINDINGS
Does the applicant satisfy the refugee criterion for protection?
The issue in this case is whether the applicant is a homosexual and whether she is owed protection in Australia as a refugee or a person entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
The Tribunal finds that overall the applicant is a credible witnesses. The applicant gave oral evidence separately to her partner, and [Partner A’s] oral evidence substantially corroborated the oral evidence of the applicant. The Tribunal noted minor inconsistencies in their testimonies, however does not place any adverse weight on this. The documentary evidence provided to the Tribunal on 12 November, 26 November and 4 December 2024 further corroborates the applicant’s claims.
The applicant’s sexuality
During the hearing the applicant provided detailed evidence regarding her sexuality. She stated that she came to realise that she had a different sexual orientation from other girls when she was approximately 6 or 7 years old, and she realised that she was more attracted to girls than boys. She told friends at school that she was not romantically interested in boys. She stated that she had her first relationship with a girl whilst at high school when she was approximately 17 years old. They started a relationship shortly after the applicant’s grandfather passed away. After they became a couple, they started going to school together, going home together, and spending school holidays together. They would hold hands and kiss when no one else was around. The applicant said that they received strange looks when they were out together. Eventually, the applicant’s girlfriend could not tolerate this and she ended the relationship. The applicant said that at school she presented as a boyish female. She wore her hair short and wore gender neutral clothes. At school she was bullied because of her sexuality. While she stopped being open about her sexuality, she continued to be bullied and beaten at school because of her sexuality and her boyish appearance.
The applicant stated that in her late 20s she had another relationship with a woman, whom she met at work. The applicant developed feelings for her and started to court her and give her gifts. They kept their relationship secret for fear of societal discrimination. On one occasion, they were insulted by a group of men whilst having a drink at a bar. The applicant was dragged out of the bar and beaten while her girlfriend was held back. The applicant reported this incident to the police, but the police said the applicant deserved the beating. During weekends and holidays they would take trips together. They masked their relationship by saying they were good friends and they kept their relationship from their families. Their relationship lasted for approximately 2 years. The applicant’s girlfriend ended the relationship and told the applicant that she was going to marry a man.
The applicant stated that she met her current partner, [Partner A], in 2020 at work. Over time they got to know each other and spent more time together. [Partner A] had a problematic relationship with a man and the applicant provided her with emotional support. The applicant took her out for meals and bought her gifts. When [Partner A’s] relationship with her boyfriend ended in July 2022, the applicant took the initiative to ask her out. They celebrate their relationship anniversary each year on 20 July. They started living together at the end of 2022. They pay for joint expenses using a joint bank account, into which they both make contributions. They have holidayed together and posted photos and videos about their relationship on social media. The applicant stated that there is a huge difference between her life as a lesbian in Australia compared with her life in Malaysia. In Australia she is not afraid to hold hands and kiss her partner in public. She does not receive strange looks and she does not fear harassment and assault. There is a big difference in how she feels in Australia. In Australia she goes by the boy’s name [specified].
The applicant took evidence from [Partner A] during the second hearing. [Partner A] stated that she met the applicant through work. At the time, she had a lot of problems in her relationship with her boyfriend. She started sharing these problems with the applicant and she realised that the applicant understood her better than her boyfriend and they had a lot in common. On 19 July [Partner A] told the applicant she had broken up with her boyfriend. She said that she had been thinking a lot about her relationship with the applicant, and it was clear they were more than friends. Their romantic relationship started on 20 July 2022 and they moved in together at the end of 2022. [Partner A] provided a statutory declaration to the Tribunal on 12 November 2024 and the Tribunal notes her oral evidence is consistent with the information in her statutory declaration.
The applicant provided substantial documentary evidence in support of her claimed relationship with [Partner A]. The documents provided include a bundle of joint bank account statements for the [Bank 1] account which they use to pay for their day-to-day expenses. The Tribunal notes the deposits into the joint bank account are consistent with the applicant’s oral evidence as to the payments she and [Partner A] make into this account. [Partner A] stated that the applicant buys gifts for her, and the applicant provided receipts for gifts purchased. On 29 November 2024 the Tribunal wrote to the applicant and expressed concern that 2 of the gift receipts from a [Business 1] store contained an incorrect store address, which may indicate they are not genuine documents. On 4 December 2024 the applicant provided the Tribunal with an email from a [Business 1] customer service representative confirming that there is a misspelling with the street name on the 2 receipts issued to the applicant, however the receipts were issued from an official [Business 1] store. The applicant also provided the Tribunal with copies of the 2 emails from [Business 1] attaching the 2 gift receipts. On the evidence, the Tribunal accepts the 2 gift receipts were validly issued by a [Business 1] store, and the Tribunal accepts them as evidence the applicant has purchased gifts for her partner.
The Tribunal also notes the letters from the applicant and [Partner A’s] friends in Australia and the social media posts provided to the Tribunal further corroborate the claimed relationship between the applicant and [Partner A].
The Tribunal found the evidence of the applicant’s relationship with [Partner A] persuasive. They provided detailed and credible evidence regarding how their relationship started, how it developed over time, and the emotional support and companionship they derive from each other.
Based on the applicant and [Partner A’s] oral evidence and the documentary evidence provided, the Tribunal is satisfied that the applicant is a lesbian and that she is in a committed de facto relationship with [Partner A]. The Tribunal accepts that they live together as partners and they plan to marry. The Tribunal finds that were the applicant to return to Malaysia, her partner would relocate with her, or would travel to Malaysia to spend time with the applicant. The Tribunal finds that they would live together in Malaysia. The Tribunal also finds the applicant’s evidence of past harm due to her sexuality to be credible and persuasive, the Tribunal accepts the applicant has faced physical harassment and social discrimination in Malaysia due to her sexuality, and the Tribunal accepts she has previously concealed her sexuality to avoid harm.
When asked why she fears returning to Malaysia, the applicant responded that she fears persecution because of her sexuality. She stated there is a lot of discrimination against homosexuals, and she has faced discrimination and harm in the past. She stated that the authorities would not be able to protect her. The applicant also stated that she fears harm because of a previous debt in Malaysia. While she has paid off the principal amount, the loan shark has asked her to pay interest, which has accumulated, and she cannot afford to pay it.

During the hearing the Tribunal asked the applicant why she did not raise her sexuality claim when making her protection visa application. The Tribunal then wrote to the applicant on 14 November 2024 and invited the applicant to comment under s 359A of the Act on why her Movement Details were inconsistent with her oral evidence. On 26 November 2024 the applicant responded to the Tribunal’s invitation to comment, providing a detailed statutory declaration explaining how she came to meet the migration agent who assisted her in applying for protection, and explaining that she was unaware that her agent had failed to lodge her application before the expiry of her Electronic Travel Authority. The Tribunal acknowledges the applicant had little English-language proficiency at the time of her arrival in Australia and that she was reliant on a friend and a migration agent to assist her with pursuing a visa to remain in Australia. Considering the detailed explanation provided, the Tribunal accepts the applicant took steps to try to apply for a protection visa before the expiry of her Electronic Travel Authority, and that she wholly relied on her migration agent to lodge her visa application. The Tribunal does not place any adverse weight on the agent’s failure to lodge the protection visa application 18 months after the applicant’s arrival in Australia.
Malaysia currently criminalises consensual same-sex relations both at the federal level through the Penal Code (1936) and at the state level through individual State Syariah Enactments.[1] The Tribunal notes the following extracts from the latest DFAT Country Information Report on Malaysia:
As a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent. The Malaysian Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration). Oral heterosexual sex performed upon a man is also an offence, although DFAT is not aware of any prosecutions for this act; oral sex performed upon a woman is not an offence.[2]
…
JAKIM and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events. On 30 October 2022, RMP and the Federal Territories Islamic Religious Department (JAWI) raided a Halloween event attended by members of the LGBTQIA+ community in Kuala Lumpur and arrested at least 20 people. Malaysian NGO Justice for Sisters reported in 2022 that 24 people were being investigated for offences including: being males posing as women; ‘encouraging vice’; and ‘indecent acts’ in a public place. State officials have conducted raids on private premises, sometimes accompanied by members of the RMP. Some in-country sources reported that authorities conducted such raids as a means of creating income through extortion and blackmail.
…
The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity. Well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas.[3]
…
DFAT assesses that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence. LGBTQIA+ civil society organisations face a moderate risk of official discrimination in the form of legal charges and harassment by officials.[4]
[1] 'Laws On Us: A Global Overview of Legal Progress and Backtracking on Sexual Orientation, Gender Identity, Gender Expression, and Sex Characteristics', ILGA World, 30 May 2024 at p 55.
[2] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, at 3.147.
[3] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, at 3.147.
[4] Ibid at 3.148.
The Human Rights Watch World Report 2024 states that state-sponsored discrimination against LGBTIQ+ people remains pervasive in Malaysia. In January 2023, Prime Minister Anwar Ibrahim rejected the idea that LGBTIQ+ Malaysians would be recognised and protected under his government.[5] In September 2023, Prime Minister Anwar Ibrahim said he has to respect the consensus of Malaysians and that they do not accept public displays of LGBTQ+.[6]
[5] ‘Human Rights Watch World Report 2024’, Human Rights Watch (HRW), 11 January 2024, 20240112083455 [Malaysia pp.404-409].
[6] ‘Anwar on Malaysia’s stand on LGBTQ+ issue: We have to respect the consensus of the people [NSTTV]’, New Straits Times (23 September 2023) <
According to a 2022 report by Human Rights Watch and Justice for Sisters, a legal environment that criminalises LGBTIQ+ people, the absence of non-discrimination protections and ubiquitous anti-LGBTIQ+ discourse from high-level government officials contribute to an environment in which discrimination on the grounds of gender identity and sexual orientation flourishes.[7] The US Department of State’s 2023 Country Reports on Human Rights Practices: Malaysia, states ‘observers reported violence against lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody.’[8] The report further states ‘LGBTQI+ persons reported discrimination in employment, housing, and access to some government services because of their sexuality. The government did not recognize same-sex marriage nor grant LGBTQI+ couples and their families the same rights accorded to other couples.’[9]
[7] ‘I Don't Want to Change Myself: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia’, Human Rights Watch & Justice for Sisters, 10 August 2022, 20220811100800
[8] 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024.
[9] Ibid.
The Tribunal has accepted that the applicant is a lesbian. The Tribunal finds that if she were to return to Malaysia, her partner would seek to join her, or at least would spend periods of time in Malaysia visiting the applicant whilst pursuing her own Australian visa pathway. The Tribunal finds that the applicant and her partner would be forced to conceal their relationship for fear of harm, harassment and discrimination. The Tribunal finds the only reason they would conceal their relationship is their fear of harm.
Considering all of the above, and taking into account the applicant’s specific circumstances, the Tribunal finds that the applicant faces a real chance of serious harm if returned to Malaysia on the basis of her membership of a particular social group, namely homosexuals. Her sexual orientation is a characteristic she shares with other members of the group; it is an innate characteristic; it is distinguishable from the rest of society; and it is not the shared fear of persecution: s 5L. The Tribunal is satisfied that the applicant’s membership of this particular social group is the essential and significant reason for the feared harm: s 5J(4)(a). Based on the country information, and the applicant’s personal circumstances and experiences, the Tribunal finds this harm may include significant physical harassment and societal harassment. The Tribunal is satisfied the persecution involves systematic and discriminatory conduct. The Tribunal finds the real chance of serious harm extends to all parts of the country.
The Tribunal finds that the applicant’s sexuality is an immutable characteristic and she is not required to conceal her true sexual orientation to avoid persecution. Such a modification would fall within various exceptions in s 5J(3), including concealing an innate or immutable characteristic of the person, or requiring the person to alter or conceal their sexual orientation.
The Tribunal finds the authorities of Malaysia cannot or will not provide effective protection measures to the applicant. Based on the country information, and the applicant’s personal experience, the Malaysian police are complicit in persecution against homosexuals, or are unwilling to assist complainants.
The Tribunal finds that the applicant has a well-founded fear of persecution in Malaysia. The Tribunal further finds that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. Section 36(3) therefore does not apply.
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). As the Tribunal has found that the applicant has a well-founded fear of persecution for the reasons provided, the Tribunal does not consider it necessary to assess other protection claims arising from her evidence.
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.
Date of hearings:                 28 October 2024 and 13 November 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(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.
…