1929817 (Refugee) - [2023] AATA 1398

1929817 (Refugee) [2023] AATA 1398 (4 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Judy Hamawi (MARN: 1793617)
CASE NUMBER:  1929817
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Shahyar Roushan
DATE:4 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 04 May 2023 at 1:11pm

CATCHWORDS
REFUGEE – protection visa – Lebanon – member of particular social group – young adult with intellectual disability – multiple diagnoses and behaviours, total dependency on parents and physical and mental health – verbal and physical abuse at school and by family members, neighbours and general public – assessment and treatment in Australia – country information – systemic lack of services and high risk of official and societal discrimination – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(b), 5L, 36(2)(a), (b)(i), 65
Migration Regulation 1994 (Cth), Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
Chan v MIEA (1989) 169 CLR 379
MIMA v Haji Ibrahim (2000) 204 CLR 1
SZBBP v MIMIA [2005] FMCA 5
SZBQJ v MIMIA [2005] FCA 143
VBAO v MIMIA (2006) 233 CLR
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The first named applicant (the applicant) is a [Age]-year-old national of Lebanon. He travelled to Australia with his parents: [the second named applicant] and [the third named applicant] [in] January 2019 on a Tourist Stream visa (Class FA) (Subclass 600).
On 28 March 2019, the applicant lodged an application for a Protection visa. [The second and third applicants] were included in the application as members of the same family unit. They did not make their own separate claims for protection.
On 4 October 2019, a delegate of the Minister for Home Affairs refused to grant the applicant the visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
According to his Protection visa application, the applicant was born in and resided at a single address in Tripoli, North Lebanon. He has a brother and a sister who continue to live in Lebanon. He has partially completed his primary schooling and has never been employed.
In a statement dated 28 March 2019, the following claims were made on behalf of the applicant by his representative, Ms Judy Hawami.
The applicant suffers from an intellectual disability, characterised by developmental delay, including delay in reaching language, thinking and motor skills milestones, and limited adaptive functioning since birth. As a result, he was diagnosed with ‘mental retardation’, autism and dyslexia in Lebanon.
The applicant is dependent on his parents for all activities of daily living due to his disability, which is also characterised by ‘illogical thinking’, illustrated through his ‘excessive eating’, resulting in morbid obesity. In addition, the applicant demonstrates ‘extreme’ hygiene practices, oscillating between refusing to shower for extended periods or showering multiple times a day. He currently has a diagnosis of depression, anxiety, stress and obsessive-compulsive disorder, with features of self-harm behaviour.
Due to his developmental delay, the applicant ‘lagged’ behind in education and found it difficult to interact with others. He faced difficulties enrolling in schools or his needs were unable to be met in the schools he was able to enrol in. The applicant’s disability and its features also resulted in him being subjected to ‘ongoing bullying’ by peers, neighbours, family members and the general public. He was ‘heavily bullied’ at school and was called a ‘fool’, ‘stupid’, ‘passive’, ‘failure’, ‘useless’, ‘retarded’ and ‘crazy’. He was also subjected to this form of bullying outside of school. He was highly vulnerable to exploitation, with schoolmates taking his money by threatening him. As a result of being subjected to ‘continuous and unbearable bullying’, he developed ‘low self-esteem’, increasingly isolated himself at home, fearing exposure to harm, and attempted to take his own life.
Since arriving in Australia, the applicant feels happy and accepted as he has ‘escaped from the misery of bullying and rejection of the Lebanese society’. He is ‘no longer under pressure from the people who used to regularly mock him with no mercy’. The applicant is able to walk the streets in Australia ‘without people looking him in a different way or without laughing at him’.
There is a ‘systemic lack of provisions for rights, resources, and services for persons with disabilities in Lebanon’, due to government inaction. As a result, persons with disabilities experience widespread discrimination, marginalisation, exclusion, and violence, at the hands of a range of State and non-State institutions and individuals in all areas of their lives.
People with disabilities in Lebanon face adverse political, social, cultural, and economic conditions. This has ‘extremely detrimental effects on their rights, capacities, experiences, and quality of life.’ Lack of knowledge, prejudice, and stigma against persons with disabilities are common, especially against those with intellectual or mental disabilities.
Whilst Law 220/2000 enshrines important commitments to the rights of persons with disabilities, many of these commitments have not been fulfilled due to government inactivity and political unrest.
Supporting evidence
In support of the application, Ms Hawami submitted a letter from [Dr A], General Practitioner, dated 31 July 2019, stating that the applicant suffers from ‘anxiety/depression, panic attacks, autistic spectrum disorder, Prader-Will syndrome, morbid obesity and communication difficulties, mental retardation and still dependent with daily’.
The interview
The applicant attended an interview with the Department on 5 August 2019. The interview was conducted with the assistance of an interpreter in the Arabic and English languages. Ms Hawami was present at the interview. The applicant’s parents also attended the interview, and the delegate took oral evidence from [the second applicant]. Where relevant, the applicant’s oral evidence to the delegate is referred to in the Tribunal’s analysis below.
Post Interview submissions
On 12 August 2019, Ms Hawami made a submission to the Department, addressing the concerns raised by the delegate at the interview. She also stated in her submission that the applicant and his parents have faced difficult circumstances since their arrival in Australia, including homelessness and unemployment. The applicants lived with relatives initially but were forced to find alternative accommodation due to the applicant’s behaviours of concern. They now live in shared accommodation which poses difficulties due to the applicant’s behaviours.
On 16 September 2019, Ms Hawami submitted a psychiatric report authored by [Dr B], dated 29 August 2019. The report set out the applicant’s history and noted that the applicant’s parents were seeking assistance with managing the applicant’s threatening behaviour as he is verbally and physically abusive. Noting that the applicant has no past history of mental health issues or mental health admissions either in Lebanon or Australia, [Dr B] diagnosed the applicant with ‘Intellectual disability (severely unspecified)’ and ‘behavioural changes secondary to intellectual disability’. [Dr B] recommended that the applicant be referred for further psychometric (IQ assessment and his current functioning) assessments.
Ms Hawami also submitted a letter from [Dr C] dated 31 August 2019, stating that the applicant has attended his practice on eight separate occasions between 15 May 2019 and 21 July 2019.
The delegate’s decision
The delegate expressed concern in relation to the credibility of aspects of the applicant’s claims, noting that no evidence had been submitted in support of the claim that the applicant had been diagnosed with ‘mental retardation’, autism, dyslexia and other conditions in Lebanon. The delegate also referred to inconsistencies between the written claims provided to the Department and [the second applicant]’s oral evidence at the interview in relation to incidents of self-harm by the applicant. Whilst the delegate observed that the medical reports submitted are inconclusive as to a diagnosis regarding the applicant’s pre-existing intellectual and behavioural medical conditions, she accepted that the applicant has an intellectual disability and associated behaviours of concern, as well as anxiety and depression. She accepted that the applicant may also have autistic spectrum disorder and that he is dependent on his mother for activities of daily living. She further accepted that the applicant was bullied and verbally abused at school and by neighbours. However, she did not accept that the applicant had difficulty remaining enrolled at school, that his parents were required to enrol him in private schools because of his special needs and that his father was unable to pay for his private school tuition. Nor did she accept that the applicant was physically assaulted by neighbours or that he had previously attempted self-harm in Lebanon. The delegate did not accept the applicant’s claims for protection to be credible, rejecting his contention that he would face violence, discrimination and stigmatisation by State and non-State actors. The delegate found that the applicant would not face a real chance of serious harm or a real risk of significant harm if he were to be removed to Lebanon.
The review application
On 21 October 2019, the applicant applied for a review of the delegate’s decision.
On 26 April 2023, Ms Hawami submitted a psychological assessment report to the Tribunal, dated 24 June 2020, co-authored by [Dr D], Coordinator, [Affiliation 1], and [Mr E], Provisional Psychologist, [Affiliation 2], The report stated that the applicant had obtained a Full Scale Score in the ‘Borderline range’ in the Wechsler Non-Verbal (WNV) Scale of Ability (designed to assess the general cognitive ability of children, adolescents and young adults), indicating that his intellectual functioning is as high as that of 3% of people his age. He also obtained a score in the ‘Extremely Low range’ in the Adaptive Behaviour Assessment System - third edition (ABAS-3). The ABAS-3 is a comprehensive, norm-referenced assessment of adaptive skills needed to effectively and independently care for oneself, respond to others, and meet environmental demands at home, school, work and in the community. Whilst [Dr D] and [Mr E] noted that the results of the assessments must be interpreted with caution due to the applicant’s lack of formal education, they concluded that ‘results from the current assessment suggest that [the applicant] may meet the DSM-5 criteria for intellectual disability of mild severity.’
Ms Hawami also submitted a report from [Ms F], Psychologist, dated 10 January 2023, stating that she has been providing the applicant with ‘psychological therapy… for several months over a 2 year period’. [Ms F] noted that the applicant has a diagnosis of Post Traumatic Stress Disorder with severe depression and anxiety and stated ‘it is evident that his psychological issues were triggered by continued bullying - verbal and physical - by adolescence and young adults in his neighbourhood and community in Lebanon.’ This ‘relentless’ bullying and its severity, have impacted significantly on the applicant’s ‘self- esteem, self-identity, and also his sense of self- worth’, leading to two suicide attempts. The report further stated that the applicant is unable to perform basic tasks such as ‘self-care, attending to personal hygiene, shopping, attending appointments and leaving home unaccompanied by his mother’ due to his mental health.
The hearing
The applicant appeared before the Tribunal on 3 May 2023 to give evidence and present arguments. The Tribunal also took evidence from [the second applicant]. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Where relevant, the oral evidence given to the Tribunal at the hearing is referred to in the Tribunal’s analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, findings and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The Tribunal did not share the delegate’s concerns regarding the credibility of the applicant’s claims and is of the view that the concerns raised do not in any way undermine the applicant’s core claims relating to his fear of persecution in Lebanon for the reason of his disability.
Importantly, despite her credibility concerns, the delegate accepted that the applicant has an intellectual disability and mental illness and that he was subjected to bullying and verbal abuse in Lebanon. Further medical evidence submitted to the Tribunal in support of the application for review, clearly establish that the applicant’s cognitive ability in the borderline range, his adoptive skills is in the extremely low range and that he has a diagnosis of mild intellectual disability.
Individuals with mild intellectual disability are slower in all areas of conceptual development and social and daily living skills.[1] According to the Intellectual Disability Rights Centre, it’s a misconception to assume the term 'mild' suggests the disability is somehow insignificant or minimal in its effects as mild intellectual disability has major effects. Persons assessed to have mild intellectual disability fall within the bottom 2 per cent of the population in intellectual functioning and have significant difficulty with everyday survival skills, problem solving, planning and comprehension.[2]
[1] See Boat TF and Wu JT (eds), Mental Disorders and Disabilities Among Low-Income Children, Committee to Evaluate the Supplemental Security Income Disability Program for Children with Mental Disorders; Board on the Health of Select Populations; Board on Children, Youth, and Families; Institute of Medicine; Division of Behavioral and Social Sciences and Education; The National Academies of Sciences, Engineering, and Medicine, National Academies Press (US); 28 October 2015,
[2] Intellectual Disability Rights Centre, S32 Step By Step Guide, Common Effects of Intellectual Disability,
On the basis of the evidence before it, the Tribunal accepts that the applicant has an intellectual disability and that he displays behaviours of concern associated with his disability. The Tribunal further accepts that the applicant has severe depression and anxiety.
The applicant’s diagnosis was consistent with his presentation at the hearing. Whilst he was able to respond to simple questions, it was evident that he had difficulty communicating more complex narratives and ideas regarding his circumstances in Lebanon. To the extent that the applicant was able to communicate information in relation to his past experiences, his evidence was consistent with what has been previously communicated in writing on his behalf, his oral evidence to the delegate and his mother’s oral evidence to the delegate and the Tribunal.
The applicant stated at the hearing that he was subjected to ridicule, name calling, and physical harassment whenever he left his house. These acts were perpetrated by ‘boys in street’ and sometimes by his neighbours. He was repeatedly called ‘crazy’ and ‘fat’, they took his glasses, and he was ‘bashed’. On each occasion, he felt extremely upset, he cried, and confined himself to his house.
In her evidence in support of her son’s claims, [the second applicant] stated that the applicant was always bullied on the streets and at school. He was ‘bashed’ and his glasses were taken and his money was stolen. He was scared to go out and was isolated at home. She explained that her son was subjected to these acts because his ‘brain is smaller than his age.’
This evidence is consistent with the country information before the Tribunal, indicating that persons with intellectual disabilities are ‘the most challenged and stigmatised people in Lebanese society.’ According to Mohammed Ali Loutfy,
A pejorative phrase such as ‘What’s the matter, are you handicapped?’ is frequently used; when questioned it is not uncommon for the speaker to retort with a statement such as ‘Are you retarded?’ Thus, disability remains synonymous with pity, ridicule, or even contempt.[3]
[3] Mohammed Ali Loutfy, Different Bodies, Different Lives: The Experience of Persons with Disabilities in Lebanon, American University ProQuest Dissertations Publishing, 2019,

Other sources have noted that persons with disabilities in Lebanon experience ‘widespread discrimination, marginalisation, exclusion, and violence, at the hands of a range of State and non-State institutions and individuals, in the home and outside.’[4] Lack of knowledge, prejudice, and stigma against persons with disabilities are common, especially against those with intellectual or mental disabilities.[5] In her comprehensive paper on the situation of persons with disabilities in Lebanon, Emile Combaz has contended that persons with disabilities receive inadequate levels of assistance and they are left to face stigma and isolation, which has had severe negative consequences for them. Citing a 2017 UNICEF report, Combaz notes that there is ‘specific hostility’ towards persons with intellectual or mental disabilities.[6] Combaz has further argued that women, girls, and boys with disabilities are subjected to high levels of discrimination, exclusion, economic exploitation, and violence, at home and outside of it. She further states that violence against children and adolescents with disabilities, including sexual violence against girls and boys with intellectual disabilities, bullying and physical violence perpetrated by community members is a common issue, noting that persons with intellectual disabilities in Lebanon are at much higher risk of gender-based and sexual violence.[7]
[4] Emile Combaz, Situation of persons with disabilities in Lebanon. K4D Helpdesk Report,
[5] Ibid.
[6] Ibid.
[7] Ibid.
DFAT has also assessed that persons with disabilities remain stigmatised in Lebanese society and face a high risk of official and societal discrimination. According to DFAT, Lebanese authorities regularly fail to ensure adequate support for people with a disability.[8] In its 2019 Country Information Report, DFAT also referred to the findings of a May 2018 Human Rights Watch (HRW) report, stating that ‘children with disabilities were generally excluded from public schools due to discriminatory admission policies, lack of reasonable accommodations, a shortage of sufficiently trained staff, lack of inclusive curricula (including no individualised education programs), and discriminatory fees and expenses that further marginalised children with disabilities from poor families.’[9]
[8] DFAT, Country Information Report – Lebanon, 18 December 2015; DFAT, Country Information Report – Lebanon, 23 October 2017 and DFAT, Country Information Report – Lebanon, 19 March 2019.
[9] DFAT, Country Information Report – Lebanon, 19 March 2019.
The Tribunal accepts the evidence provided by the applicant and his mother in relation to his experiences in Lebanon, including his experiences in relation to his schooling. The Tribunal also accepts and places weight on [Ms F]’s evidence in relation to the applicant’s psychological state, attributing his depression and anxiety to the treatment he was subjected to in Lebanon. The Tribunal accepts that the applicant was subjected to discrimination, ridicule, verbal abuse, taunts and physical harassment by members of the community as a result of his disability.
The Tribunal accepts that the conduct directed towards the applicant was unjustifiable, intensive, repetitive and prolonged, causing him distress, much humiliation, and clearly interfering with his dignity.[10] The Tribunal further accepts that the abhorrent and sustained nature of the discrimination directed towards the applicant had significantly contributed to him suffering from psychological harm in the form of severe depression and anxiety, which, in turn, had caused low self-esteem and the applicant attempting self-harm.
[10] See MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55]; Chan v MIEA (1989) 169 CLR 379 at 430, per McHugh J.
The Tribunal is of the view that the applicant’s disability had rendered him highly vulnerable and defenceless against the discriminatory and harmful conduct he was subjected to, exacerbating the gravity of the harm.[11] The evidence before the Tribunal suggests that the applicant had shown a high level of sensitivity to the discriminatory treatment directed at him. The Tribunal finds that, in the circumstances of this case, the treatment the applicant was subjected to in Lebanon amounts to serious harm. The Tribunal finds that persons with disabilities in Lebanon constitute a particular social group within the meaning of s 5L of the Act. The Tribunal is satisfied that the persecution directed at the applicant was essentially and significantly for the reason of his membership of the particular social group of persons with disabilities in Lebanon.
[11] See, for example, AGA16 v MIBP [2018] FCA 628, SZBQJ v MIMIA [2005] FCA 143 (Tamberlin J, 28 February 2005); SZBBP v MIMIA [2005] FMCA 5 (Driver FM, 18 January 2005); and VBAO v MIMIA (2006) 233 CLR 1.
On the basis of the evidence before it, the Tribunal is satisfied that, if the applicant were to be removed to Lebanon, there is a real chance that he would be subjected to the same intensive, repetitive and prolonged discrimination he has faced in the past. The Tribunal is satisfied that this discrimination would be at the same oppressive level and that the applicant cannot be expected to tolerate it. The Tribunal is also satisfied that there is a real chance that the applicant will be subjected to sustained physical harassment and ill treatment at the hands of the members of the community. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal is satisfied that the essential and significant reason for the persecution feared is the applicant’s membership of a particular social group, namely persons with disabilities in Lebanon. The Tribunal is satisfied that the real chance of persecution relates to all areas of Lebanon. The country information before the Tribunal indicates that ‘there is a systemic lack of provisions for rights, resources, and services for persons with disabilities in Lebanon, due foremost to inaction by the State’ and that the State may in fact perpetrate violence and exercise discrimination against persons with disabilities in Lebanon.[12] The Tribunal is not satisfied that State protection is available to the applicant in Lebanon. The Tribunal therefore finds that the applicant has a well-founded fear of persecution in Lebanon.
[12] Combaz, n4, above.
The Tribunal further finds that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. It follows that s 36(3) does not apply. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
[The second and third applicants] applied for a Protection visa by relying on their membership of the same family unit as the applicant. They have not made their own specific claims for protection. The Tribunal is not satisfied that the applicant’s parents are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa).
However, the Tribunal is satisfied that the applicant is a child of and entirely dependent on both parents. The Tribunal is satisfied that [the second and third applicants] are members of the same family unit as the applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Shahyar Roushan
Senior Member

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.
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Brighton, UK: Institute of Development Studies, 2018.