1929744 (Refugee) - [2025] ARTA 1379

1929744 (REFUGEE) [2025] ARTA 1379 (23 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1929744
Tribunal:General Member L Luo
Date:23 April 2025

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application in respect of the first named applicant for a protection visa for reconsideration, in accordance with the orders that the first named applicant:
(i)meets s 36(2)(a) of the Migration Act; and
(ii)satisfies s 36(2)(b)(i) of the Migration Act on the basis of membership of the same family unit as [Ms A].

AND
The Tribunal affirms the decision under review in respect of the second named applicant.

Statement made on 23 April 2025 at 12:58pm
CATCHWORDS
REFUGEE – protection visa – political opinion – attendance at rally – attacked and monitored – second applicant cousin not member of family unit and cannot be contacted – decision affirmed – application completed by another person and claims incorrect – first applicant’s new claim as member of particular social group – homosexual woman – relationships, bullying and discrimination – documentary evidence – registered partner’s separate protection visa granted – family initially unsupportive then accepting – country information – Chinese Malaysian not subject to syariah laws – criminal laws and moderate to high risk of societal and official discrimination – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5CB(2), 5H(1)(a), 5J(1), (4), (5), 36(2)(a), (b)(i), 65, 359A, 423A
Administrative Review Tribunal Act 1958 (Cth), s 106(5)
Migration Regulations 1994 (Cth), r 1.12(4)(a), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
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[1] of a decision made by a delegate of the Minister for Home Affairs on 11 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants, who claim to be nationals of Malaysia, applied for the visas on 2 January 2019.
[1] 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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The first named applicant (Applicant 1) attended the Tribunal as a witness in matter number 1810867. She gave evidence that her visa application was made by a migration agent, she was not consulted on its content and the claims were therefore incorrect. The Tribunal wrote to Applicant 2 pursuant to s 359A on 14 November 2024 with this information and invited Applicant 2 to comment on this information at the hearing.
Applicant 1 appeared before the Tribunal on 22 January 2025. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Applicant 2 did not appear before the Tribunal.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal wrote to Applicant 2 on 24 January 2025 with an invitation to provide information about how he wished to proceed with his review application, and comment on adverse information under s 359A about his relationship with Applicant 1 by 7 February 2025. The Tribunal advised that if he did not respond to the letter, the Tribunal may make a decision on his application without seeking any further information from him. Applicant 2 did not respond to this letter. The applicants’ representative wrote to the Tribunal on 7 February 2025 indicating that he had not received any instructions to respond from Applicant 2. At the date of this decision, Applicant 2 has not contacted the Tribunal.
I have considered s 106(5) of the Administrative Review Tribunal Act 2024 which sets out the circumstances that allow the Tribunal to make a decision without a hearing after an applicant fails to appear at a hearing. These include that the Tribunal is satisfied the applicant received appropriate notice of the date, time and place of the Tribunal hearing, and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
I am satisfied that Applicant 2 received appropriate notice of the date, time and place of the Tribunal hearing. Both applicants were invited to the hearing on 14 November 2024. The hearing invitation was sent to the applicants’ authorised recipient, being their representative for the review. As Applicant 1 appeared before the Tribunal after receipt of this invitation, I am further satisfied that the hearing invitation was received by the applicants’ authorised recipient.
The issues for determination in this matter are whether Applicant 2 meets s 36(2) of the Act because:
·he has a well-founded fear of persecution in his receiving country for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
·there are 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 he will suffer significant harm; or
·he is a member of the same family unit of a person who meets one of the above criteria and holds a protection visa.
After taking into account the material before me and the opportunities Applicant 2 has been given to provide further evidence in support of his application, I am satisfied that I can determine Applicant 2’s identity and receiving country, and make findings about whether he satisfies the criteria in s 36(2). Accordingly, I find that the issues for determination in the proceeding can be adequately determined without a hearing.
Applicant 2’s matter has therefore been determined on the evidence available to the Tribunal.
BACKGROUND
Applicant 1 is a [Age] year old Chinese Malaysian woman and Applicant 2 is a [Age] year old Chinese Malaysian man. The applicants are cousins and came to Australia together [in] January 2019 as the holders of an Electronic Travel Authority.
Evidence before the Department
The applicants made a combined visa application to the Department in which they claimed that they both attended a Bersih activity organised by the DAP Party on 7 May 2018. They were distributing flyers about Bersih and a group of red shirts from UMNO came and attacked them. They claimed that some of the group of red shirts lived in the same apartment complex as them and spied on them daily. They claimed that they contacted the police but the police did not help them.
The applicants were not invited to an interview. The delegate refused the applications because the applicants would only face a low risk of arrest and harassment on the basis of their political opinion, and the defeat of Barisan National at the general election further lessens the chance that Bersih supporters would be harmed in Malaysia. The delegate noted that the applicants did not provide any documentary evidence to substantiate their claimed family relationship, but for the purposes of the decision the delegate was satisfied that Applicant 2 is a member of the same family unit of Applicant 1 as defined in s 5(1).
Evidence before the Tribunal
Applicant 1 provided a significant amount of pre-hearing evidence and submissions to support her claim that she is a lesbian and in a de facto relationship with her partner, [Ms A], the holder of a protection visa. She provided a copy of her relationship registration certificate and a copy of her partner’s protection visa grant. She also attended the Tribunal as a witness in her partner’s protection visa review hearing (Tribunal number 1810867) on 13 February 2024, and provided a witness statement in respect of her partner’s review application. In the Tribunal’s decision in matter 1810867, the Tribunal accepted that Applicant 1 was in a de facto relationship with her partner.
In Applicant 1’s pre-hearing submissions, she claimed that her parents were worried about her travelling alone to Australia, so she asked her cousin, Applicant 2, to come with her. They were assisted by the son of a friend of her father, who said he would secure a visa that would allow her to work in Australia for several years, and that he had already arranged jobs for both applicants so they could start working as soon as they arrived.
In support of Applicant 1’s application, she also provided a number of articles about the plight of LGBTQIA+ people in Malaysia and attitudes of the Malaysian authorities towards LGBTQIA+ people, as well as multiple AAT decisions including her partner’s decision.
At hearing, I told Applicant 1 that, as a result of the significant amount of supporting evidence provided to the Tribunal in the current review application and her partner’s review application, I accept her claims to be a lesbian and to be in a relationship with her partner and did not need test her evidence at the hearing. I indicated that I will make a favourable decision in her matter, but that I could not in respect of Applicant 2. Applicant 1 confirmed that the claims in her visa application were not correct. Applicant 1 also gave evidence that Applicant 2 does not live with her and is not financially dependent on her or her partner. I advised Applicant 1 that, if she was able to contact Applicant 2, she should tell him to contact the Tribunal and advise how he wished to proceed with his review application. I advised that he could withdraw the application, continue the application and attend a hearing or consent to the Tribunal making a decision without a hearing. I advised that if he did not contact the Tribunal, the Tribunal will make a decision in his matter on the information available.
As set out above, Applicant 2 has not contacted the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicants are refugees or owed complementary protection, and whether Applicant 2 is a member of the same family unit of Applicant 1. For the following reasons, the Tribunal has concluded that the decision under review in respect of Applicant 1 should be set aside and remitted for reconsideration, and the decision under review in respect of Applicant 2 should be affirmed.
Applicant 1
I have viewed a copy of Applicant 1’s passport and the Department’s identity assessment and accept that she is a Malaysian citizen and holds no citizenship of another country. I find that Malaysia is the receiving country. I accept Applicant 1 was born in George Town, Pulau Pinang. I accept Applicant 1 is Chinese Malaysian and of Buddhist faith.
I accept Applicant 1’s evidence that she did not know what was in her original visa application and have not drawn an adverse inference under s 423A.
In Applicant 1’s pre-hearing submissions, she claimed that she was sexually abused as a 13 year old by an older boy from school. After this incident, she began to avoid interacting with boys. In 2012, she began her first lesbian relationship with a girl at school. As their intimate behaviour towards each other at school was noticed by classmates, she and her girlfriend were subjected to bullying and harassment for being homosexual from their classmates, and her girlfriend was also beaten. They sought help from the teachers, but the teachers said it was a joke and that it was their fault and homosexuals should be imprisoned. Her girlfriend subsequently transferred to another school. In 2013, she met [Country 1] woman on an LGBTQ+ dating app and began a relationship a few months later. They maintained their long distance relationship until 2018 when they travelled to [Country 2] together. During their trip, they designed a tattoo together to symbolise their relationship. Applicant 1 provided a photo of this tattoo on her [body part] along with a description about its significance. She claims that the tattoo design has [several components with meanings]. Applicant 1 also provided multiple photos of this trip with her girlfriend. After the trip, she and her girlfriend broke up due to distance, family and social pressures on homosexuality. As a result of the breakup, Applicant 1 was depressed and realised she could not find happiness in Malaysia and decided to come to Australia. As Applicant 1’s parents were worried about her travelling alone, she asked her cousin, Applicant 2, to come to Australia with her.
In September 2019, Applicant 1 met her current partner through [an app]. They both lived in Sydney. After a period of getting to know each other, Applicant 1 realised she had feelings for her partner, but was afraid to develop another relationship due to her past experiences. They entered into a relationship on 14 February 2020 and moved in together in July 2020. They broke up in November 2020 and her partner moved to Melbourne in April 2021. They reconciled in August 2021 and maintained a long distance relationship until Applicant 1 moved to Melbourne in July 2022 and the two began to live together. Not long after this, Applicant 1 told her family about her sexual orientation. They were initially unsupportive but ultimately accepted the relationship. They registered their relationship with the consent of Applicant 1’s family.
Applicant 1 said that if she was forced to return to Malaysia, in addition to being separated from her partner, she feared discrimination and bullying based on her past experiences and that she will die alone as homosexuality is a crime in Malaysia. She hopes that she can stay in Australia with her partner and live openly and proudly.
I accept Applicant 1’s claims that she is a lesbian and experienced bullying and discrimination on the basis of her sexuality in high school. Applicant 1’s description of her previous relationships and experiences were broadly consistent with her witness statement provided in matter 1810867. The significance of Applicant 1’s tattoo symbolising her homosexuality was also provided as evidence before the Tribunal in matter 1810867.
I accept that Applicant 1 is in a relationship with her partner for the following reasons. Applicant 1’s pre-hearing submissions about her relationship with her partner and their commitment to each other are consistent with her witness statement to the Tribunal in matter 1810867, her oral testimony in the hearing in that case and her partner’s written and oral evidence about their relationship. Applicant 1 also gave the Tribunal a copy of their relationship registered on 30 September 2022, copies of rental agreements with both parties listed as tenants from 2023-2025, statements from the parties’ joint bank account from 2022 and 2023-2024, and travel booking and photos of a trip the parties took to [Town] in November 2024. In support of her partner’s protection visa review application, the parties also submitted copies of bank statements from 2023, tenancy agreements and a collection of photos dated 2019-2023 with descriptions of the significance of these photos and showing the parties at various locations throughout their relationship, some of which were with friends. I have also listened to Applicant 1 and her partner’s oral evidence in the hearing in matter 1810867 and found their oral evidence about each other and the nature of their relationship consistent and compelling. I have also taken into account the Tribunal’s decision in 1810867 and the Tribunal’s assessment that the parties are in a de facto relationship.
I have considered DFAT country information which states that, as a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult

same-sex acts are illegal, both under the penal code and state-level syariah laws, and there are 52 laws that criminalise different forms of LGBTQIA+ behaviour across Malaysia. Prosecutions of such offences are typically under syariah laws, and successful prosecutions are rare. Lesbian and queer women are also much less visible in Malaysia than other LGBTQIA+ members, and treatment for lesbians is worse for Muslim women. In September 2018, a Terengganu syariah court convicted two women of having lesbian sex and sentenced them to six strokes of the cane and a fine of MYR3,300. The level and frequency of discrimination faced by LGBTQIA+ members differ based on their sexual orientation and gender identity, as well as their socioeconomic status, religion, geographic location and degree of openness regarding their sexual orientation and gender identity.

Well-educated urban LGBTQIA+ individuals are less likely to have to hide their sexuality, and people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in East Coast peninsular Malaysia or Sabah and Sarawak. DFAT assesses that LGBTQIA+ members face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, exclusion from public spaces, housing and employment opportunities, and societal violence.

Applicant 1 is in the fortunate position of having a supportive family and her hometown of Georgetown is a large metropolitan city. As a Chinese Malaysian, she will also not be subjected to syariah law based prosecution or investigation. Nevertheless, based on prevailing intolerant attitudes towards LGBTQIA+ individuals in Malaysian society in general, including through multiple comments made by top government officials such as the Prime Minister, there is a small but real chance that the applicant will be subjected to prosecution or significant societal discrimination and violence, particularly as a lesbian in a long term relationship with another woman.
Does the applicant satisfy the refugee criterion for protection?
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
I find Applicant 1 has a subjective fear of persecution on the basis of her membership of a particular social group, LGBTQIA+ people in Malaysia.
I find that, if Applicant 1 returns to Malaysia now or in the reasonably foreseeable future, there is a real chance she will be harmed. This harm may include prosecution, discrimination and violence which constitute serious harm under s 5J(5). This harm will be for the essential and significant reason of her membership of a particular social group, and will involve systematic and discriminatory conduct.
I find that the real chance of harm relates to all areas of the country as it involves both state sanctioned discrimination and societal discrimination.
As the state is an agent of harm, I find that there are no effective protection measures available to Applicant 1 under s 5J(2).
Applicant 1 cannot be required to modify her behaviour under s 5J(3)(c)(vi) as doing so would alter her true sexual orientation.
Accordingly, I find that Applicant has a well-founded fear of persecution under s 5J(1). She is unable or unwilling to avail herself to the protection of Malaysia and is therefore a refugee under s 5H(1)(a). I am satisfied she is owed protection under s 36(2)(a).
I also find that Applicant 1 is in a de facto relationship with her partner under s 5CB(2). Based on the significant amount of evidence submitted by the parties, including in the previous Tribunal matter, I accept the parties are not in a married relationship but they have a mutual commitment to a shared life to the exclusion of all others (s 5CB(2)(a)), the relationship between them is genuine and continuing (s 5CB(2)(b)), they live together
(s 5CB(c)(i)) and they are not related by family. Accordingly, I find Applicant 1 is a member of her partner’s family unit under reg 1.12(4)(a) of the Regulations. I am satisfied she meets s 36(2)(b).
Applicant 2
I have viewed a copy of Applicant 2’s passport biodata page on his Department file, as well as the Department’s identity assessment, and am satisfied that he is a Malaysian citizen and holds no citizenship of any other country. Accordingly, I find that his receiving country is Malaysia.
Applicant 2 was born on [Date] in Pulau Pinang. I accept that he is Chinese Malaysian and a Buddhist.
Protection application claims
I accept Applicant 1’s evidence that her protection visa application claims were incorrect as the application was filled out by someone else. As Applicant 2’s application was made on the same form and his claims were identical to Applicant 1’s original claims, I find that Applicant 2’s protection visa application claims are also incorrect and therefore untrue. Applicant 2 has not advanced any other claims for protection.
As I find that Applicant 2 has no claims for protection, I find that there is no real chance or real risk that he will suffer serious or significant harm if he returns to Malaysia now or in the reasonably foreseeable future.
Claims arising from Applicant 2’s profile
I have considered whether there is a real chance or real risk Applicant 2 will suffer serious or significant harm if he returns to Malaysia on the basis of his profile as a Chinese Malaysian man of Buddhist faith.
DFAT country information states that there are no laws discriminating against Chinese Malaysians and the Malaysian Constitution guarantees freedom of religion. Accordingly, I find that, if Applicant 2 returns to Malaysia, there is no real chance Applicant 2 will suffer serious harm, and no real risk he will suffer significant harm, now or in the reasonably foreseeable future on the basis of being Chinese Malaysian or a Buddhist individually or cumulatively.
Applicant 2’s relationship with Applicant 1
I accept that Applicant 2 is Applicant 1’s cousin. I accept Applicant 1’s evidence that Applicant 2 does not live with her and is not financially dependent on her or her partner. Accordingly, I find that Applicant 2 is not a member of the same family unit as Applicant 1 for the purpose of reg 1.12 of the Regulations.
Does the applicant satisfy the refugee criterion for protection?
As there is no real chance Applicant 1 will suffer serious harm if he were returned to Malaysia, I find that he does not have a well-founded fear of persecution under
s 5J. Accordingly, he is not a refugee under s 5H and does not meet the criterion in
s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that Applicant 2 does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
For the above reasons, I find there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that Applicant 2 will suffer significant harm. Accordingly, he does not meet the criterion in s 36(2)(aa).
CONCLUSION
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a) and s 36(2)(b).
The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).
As Applicant 2 is not a member of the same family unit as Applicant 1, there is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, Applicant 2 does not satisfy the criterion in s 36(2).
DECISION
The Tribunal sets aside the decision under review and remits the application in respect of the first named applicant for a protection visa for reconsideration, in accordance with the orders that the first named applicant:
·(i) meets s 36(2)(a) of the Migration Act; and
·(ii) satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as [Ms A].
AND
The Tribunal affirms the decision not to grant the second named applicant a protection visa.
Date of hearing:   22 January 2025
Representative for the Applicants:           Mr Jia Li (MARN: 5510864)
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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