1934973 (Refugee) - [2025] ARTA 826

1934973 (REFUGEE) [2025] ARTA 826 (6 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1934973
Tribunal:General Member S. Zelinka
Date:6 March 2025

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

Statement made on 06 March 2025 at 3:31pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – opposed to ruling party candidate for state chief minister who was later imprisoned for corruption – joined small opposition party and participated in protests – abused by district secretary, attacked by rowdies and detained, attacked and warned by police – two return visits for family reasons – inconsistent claims and evidence, and no documentary evidence – short, low-level involvement – change of state government – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of India applied for the visa on 26 July 2017. The delegate refused to grant the visa on the basis that he did not find any of the applicant’s claims credible.
The applicant appeared before the Tribunal on 24 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is a [Age]-year-old man of Tamil ethnicity and the Hindu religion. He comes from a farming family in Tamil Nadu. He started working in [Country 1] in 2011 and did not return permanently to India until November 2016 although he had travelled back frequently for holidays and other events such as his marriage in May 2014. He came to Australia in May 2017 and has returned twice to India: for a month in December 2018/January 2019 and again for a month in January/February 2025. On both occasions, his father was undergoing some medical treatment. His father is a widower, the applicant’s mother having died in 2005.
Political claims
The applicant’s claims were first set out in a statutory declaration that accompanied his protection visa application. He claimed that when he returned from [Country 1] in November 2016, he thought about the situation of his village which was undeveloped even though the local politicians from the AIADMK party were very wealthy. A short time later, on 5 December 2016, the Chief Minister of Tamil Nadu died and the state was in mourning as she had been very popular. A close friend of the Chief Minister’s then tried to take over. This woman, [Ms A], was known to the applicant as she originated from a town near his village and he believed she was corrupt. The applicant said he put up some posters against her. The local AIADMK district secretary came to the applicant’s village and abused him for putting up the posters and kicked him. The ’rowdies’ accompanying the district secretary also set upon the applicant attacking him for four hours until the applicant could finally go home. The applicant’s father took him to hospital where he stayed until 11 December.
The applicant’s father advised him that if he wanted to challenge politicians, he should not do it alone and unsupported. The applicant went to Chennai, enrolled in the Naam Tamilar Katchi (NTK) party and met the party leader. The popular issue in Tamil Nadu at the time concerned the attempt to ban a traditional bull-taming ‘sport’ called jallikattu that had been condemned by the Supreme Court as animal cruelty. The applicant claimed that he gathered a group of youngsters from schools and colleges to demonstrate in favour of jallikattu. He then went to [Country 2] on holidays [in] December 2016.
When he returned home he found that there were a series of protests in favour of jallikattu, that police had injured or possibly killed some demonstrators and that the applicant’s new party – the NTK – were organising meetings in various towns to condemn police violence. The applicant claimed he delivered a ‘hot speech’ at one such meeting and also condemned the ruling AIADMK state government. He claimed that police came to his home [in] January 2017, took him to a police station, brutally attacked him and detained him for three days. The applicant’s father then came to get him released, bringing a lawyer. The police inspector let the applicant go saying that if he spoke out against the AIADMK government again, he would be arrested under the Prevention of Terrorism Act.
The applicant said that he rang the NTK party leader in Chennai and said how the police had treated him. The party leader advised the applicant to come to Chennai and stay with him. The applicant went there on 2 February 2017. During February, the AIADMK party leadership question was resolved and a new Chief Minister installed. The challenger, [Ms A], was sentenced to [number] years imprisonment by the Supreme Court on corruption charges. The applicant returned to his village.
On 20 February 2017 he went to a protest rally organised by his NTK party in another village in Tamil Nadu (his home state) where he was arrested and taken to the local police station. The police there found out about his previous detention (see paragraph 13 above) and berated him for speaking out against the AIADMK party. They pushed him to the floor, injuring his head, then took him and left him at the hospital where he received some treatment and went home.
The applicant said that on 5 March 2017 a group of AIADMK ‘rowdies’ came to his house and bullied him then attacked his father who tried to intervene. The father was seriously injured and taken to hospital. Ten days later, the applicant went to the police station to lodge a complaint against these ‘rowdies’ but the police officer refused to take the complaint and warned the applicant not to go against the AIADMK. The applicant was upset and then took his wife and child away to Agra where they stayed for a week.
On 27 March 2017, back home in his village, the applicant said that he saw a group of people staring at him and pointing him out. He became afraid and ‘escaped’ to Kottyam in Kerala State where he stayed for a few days. On 1 April 2017 a man came to ask the applicant about the NTK and the applicant said he was surprised as he had not told anyone in Kottyam of his involvement and told the man he didn’t know about the party. The man returned with four ‘rowdies’ and they bullied the applicant who then ‘escaped’ to his home in Tamil Nadu.
The applicant’s wife and father advised him to go overseas to save his life. This advice was echoed by the party leader when the applicant met with him and the party leader arranged a travel agent to get visas to Australia for the applicant and his wife. They both departed [in] May 2017 but the wife returned to India after a week in order to look after their child and the applicant’s father.
The applicant was interviewed by a departmental delegate on 11 November 2019 and spoke to his claims. After a number of questions and after considering the matter, the delegate concluded that none of the applicant’s claims were credible and rejected them in their entirety.
To the Tribunal
The applicant submitted a statement to the Tribunal when lodging his appeal in December 2019. He stated that he was not a high-profile member of the NTK but an ordinary member who was against the corruption of the ruling AIADMK party. Because he supported poor people, his activities were not liked by local AIADMK or BJP politicians who targeted him and ordered the police to take action against him. He was arrested and kept in custody; he was attacked by both police and ‘rowdies’.
The applicant claimed that every time the police questioned him, he was threatened and harmed. He thought that the stress of such inquiries may have affected him during the departmental interview and caused him to be inconsistent with his dates. He noted that he was trying to get some supporting documents from India – the delegate had mentioned a party membership card and hospital discharge papers – and would submit them as soon as they arrived. The Tribunal notes that no documents have been submitted in the subsequent five years.
The applicant also referred to the fact that he had returned to India at the end of 2018, a matter raised by the delegate as an indication that the applicant did not fear persecution there. The applicant said he had to return as there had been a major storm in his home area causing great damage to his house and alarming his wife and child. His father was admitted to hospital and the applicant said he ‘stayed near the hospital to hide myself to save my life from my enemies’. The applicant returned to Australia after a month.
Before the Tribunal hearing, the applicant contacted the Tribunal on 21 January 2025 to say that he was returning to India temporarily as his father was scheduled to have an operation. He enclosed a flight schedule showing he was departing [in] January and would return [in] April; plus advice from the Australian authorities showing that he would be allowed to re-enter Australia. He also enclosed a letter from his father’s doctor to say that a cardiac procedure was scheduled for 1^st February 2025 and that the applicant’s presence would be beneficial during surgery and to provide post-operative care for 7 – 12 weeks. The Tribunal replied, noting that the hearing had already been scheduled for 24 February, and suggesting that this hearing could proceed via videolink. The applicant agreed.
It was not until the hearing had begun that the Tribunal realised that the applicant was not, as expected, in Tamil Nadu but was in Australia on videolink. He said his father had improved and so he had come back; he had not thought to inform the Tribunal of his change of plans.
The Tribunal put it to the applicant that it had carefully read all his statements of claims and listened to his interview. It noted that he referred to his political activities as starting at the end of 2016, following the death of the Chief Minister of Tamil Nadu; the applicant agreed. The Tribunal noted that he claimed involvement in the jallikattu demonstrations in early 2017 which on his account seemed to have turned into anti-state government, or specifically anti-AIADMK demonstrations. The Tribunal noted that he claimed to have been pointed out by people on 27 March 2017, giving rise to such fear that he had to ‘escape’ to Kerala and thereafter to Australia. The Tribunal put it to the applicant that his testimony indicated that his political career had been of less than four months duration, with his activities intercepted by two holidays to [Country 2] and to Agra. The Tribunal put it to him that it found it difficult to accept that in such a short time he would have developed a political profile that would have made him recognisable to people such that they pointed him out; and even more difficult to accept that he would fear the consequences of staying put.
The applicant said that the people who were pointing him out were saying things like “We need to teach him a lesson and kill him!” The Tribunal asked if he recognised the group. He said that he did not know them individually but they were AIADMK supporters. He could tell this because they wore dhotis instead of trousers and also wore the symbol of the party. He said that he found the episode frightening enough to make him leave home and go to Kerala. The Tribunal put it to him that he claimed to have been bullied and physically hurt by ‘rowdies’ on two previous occasions in December and March but on neither of those occasions did he flee. He said that on those occasions, he thought that the police would protect him but by the time of this last incident he realised that they would not, so he left.
The Tribunal asked why he left Kerala and went home. The applicant said he did not go home: he spent the next six weeks staying in small villages, moving around as he did not want to stay in one place for too long. The Tribunal asked how he managed to organise his visa, his packing, and all arrangements to go to Australia. He said that these arrangements were actually underway before to left for Kerala: he had already decided he needed to leave India and had asked his friend to organise the visa. He left for Australia with just what he had taken to Kerala.
The Tribunal put it to him that if he departed India with this amount of fear, it was incomprehensible that he had voluntarily returned there 18 months later (in December 2018). He said there had been a cyclone which damaged his house and injured his father. The father was taken to hospital so the applicant went there to see him and returned immediately. The Tribunal put it to him that he did not return immediately to Australia: he stayed for a month in India. The applicant replied that nobody knew he was there. He did not stay with his wife and child who were at her mother’s house. Instead, he stayed in a lodge near the hospital. He spent the days with his father in the hospital and inside the lodge at night, and only the family members whom he saw during the day at the hospital knew he was there.
With regard to the most recent trip (January 2025), the Tribunal established that the hospital where the cardiology unit was situated was 25 kms from the applicant’s village. The applicant said he stayed in a lodge near the hospital and spent the days with his father. Then his father was discharged and told to go home to recuperate. The Tribunal asked if he accompanied his father home from the hospital and the applicant said he did not as he did not want to face any trouble. Given that the doctor’s letter had specifically requested the applicant’s assistance for the father’s recuperation, the Tribunal asked the applicant why he had arranged a three-month stay in India (as shown by his air ticket bookings) if he had no intention of helping his father at home. The applicant replied that he had thought he would take his wife on some travels around India after his father’s operation; however, after his father’s discharge, he had decided to return to Australia. He denied that it was simply to earn another two months’ wages in Australia. He added that he decided not to travel in India with his wife because elections were coming and everyone was getting active: he felt his arrival might be known. The Tribunal put it to him that he had already spent a month there by this stage and nothing had happened; and in any case, the elections were over a year away (the state ones in Tamil Nadu – the federal ones are a lot more distant). He did not respond to this point.
The Tribunal questioned his assertion that he thought there might be trouble for him if he returned to his village, noting that eight years had elapsed since he last encountered any problems. The Tribunal also put to the applicant that the AIADMK state government had been voted out in the elections in 2021 so the applicant had even less cause to be worried. The applicant replied that he was still at risk from local AIADMK supporters and would still be at risk in 10 or 20 years time. He stated that politics were different in Tamil Nadu. Political parties worked very locally so it irrelevant that the AIADMK had lost the state election: his village remained a stronghold of the AIADMK.
The Tribunal put it to the applicant that if that were so, was his father at risk, having – according to the applicant – supported his son against AIADMK ‘rowdies’ in the past. The applicant said that his father did not face any major danger because he was old. However, opposition people still abused him in the street. The Tribunal asked if the applicant’s wife and child lived with him but the applicant said his father lived alone, the wife and child living with the wife’s mother.
The Tribunal put it to the applicant that it had difficulty accepting that he faced harm for reason of his political opinion for three reasons: firstly, that he could not have much of a political profile having been involved in political activities only from December 2016 until he went to Kerala in late March 2017 – four months at most and with absences for two holidays within that time; secondly, the political party he claimed he opposed (the AIADMK) and was threatened by the police for speaking against was swept from power in 2021; and thirdly, that despite fearing harm in his area, he voluntarily returned there from the safety of Australia on two separate occasions (in late 2018 and early 2025) staying a month on each occasion.

The applicant replied to these points. He said that in relation to harm he feared despite having a relatively short exposure to politics, he said that he was actually active before the date he stated: the date of 11 December 2016 was the date he got his membership card of the NTK. With regard to harm, he said that even in 2016 when he first encountered the ‘rowdies’, one made a gesture of slashing the throat, so the applicant knew they intended to kill him. And with respect to his two visits back to India from Australia, he noted that they were secret and no-one outside of his immediate family knew he was there.
The Tribunal asked the applicant if he had given any thought to moving to another area of India rather than coming to Australia. He said that was not possible as politics were all across India. He added that he stays in touch with his wife who tells him it is not safe for him to return as they are still looking for him.
REASONS, ANALYSIS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s passport is on file and the Tribunal finds that he is a national of India and that India is the receiving country in this case.
The applicant’s claim is that he was politically active in Tamil Nadu both in favour of the NTK party and against the AIADMK party which constituted the state government at the time. The applicant claimed that his anti-AIADMK activity came first and that he only joined the NTK when his father advised him he needed the strength of an established party behind him rather than simply protesting as an individual. His father did not give him this advice until after the applicant was hospitalised for injuries inflicted by AIADMK supporters. After his release from hospital on 11 December 2016 he travelled to Chennai to enrol in the NTK. He did not have time then for much political activities as he went on holidays to [Country 2] [in] December 2016. At the end of the hearing, the applicant said he had been active in the NTK much earlier than his official joining. The Tribunal rejects this as it contradicts his written and spoken testimony concerning his father’s advice and in any case he did not return from working in [Country 1] until November 2016, so there was not a “much earlier” timeslot where this activity could have taken place. (See paragraphs 11 and 12 above).
The applicant has claimed that he participated in protests during January 2017. His claims have no specificity and he has provided nothing to support them. Although he has had plenty of opportunity to do so, he has given no details of any protests he attended apart from saying he went to one village or another. He has given no details of his activities apart from claiming he made a ‘hot speech’. He has referred to jallikattu, a very specific cultural activity in Tamil Nadu which at the time the applicant was there in January 2017 was subject to a widely-known court case; to corruption in the AIADMK in a general way; then to a Federal project in Tamil Nadu which he claimed villagers did not like; and in his submission to the Tribunal he referred more generally to the need for an alcohol-free state. In his Tribunal submission he made no mention at all of jallikattu but referred very vaguely to bribery in the AIADMK and the BJP. The applicant has put together some scatter-gun political topics without any claims about specific strategies adopted by himself and his party to address these: any specific activities at specific times related to a particular cause and his role in such an activity.
The applicant said at the time of the departmental interview in 2019 that he would provide documentary evidence supporting his claims: the delegate mentioned that minimally this should be his NTK party membership card. The applicant repeated his intention of providing documentation to the Tribunal, also in 2019. No such documentation has been presented. Given his vague and generalised mentions of political issues, and his lack of specificity in relation to his own activities, the Tribunal finds his testimony to be a series of unsupported assertions.
The Tribunal is not satisfied that the applicant was politically active in the NTK party and is not satisfied that he was actively involved, and seen to be involved, in public political activities in late 2016 and early 2017.
The applicant claims that police came to his house on 28 January 2017 a day after he had made a speech in another city, took him for questioning, attacked him and detained him for three days, only releasing him when his father turned up with a lawyer. He was not charged. He also claimed he was taken to a police station in another village some three weeks later and when they found out he had been detained at his own local police station, they assaulted him and then took him to hospital. Again no charges were laid. His dealings with the police did not deter him from attending his own local police station again in mid-March to make a complaint about the ‘rowdies’ who came to his home and assaulted him and his father, the latter quite badly. He said the police refused to take his complaint.
There are no claims, nor does the evidence suggest, that the applicant has ever been charged by the police with any offence. There are no claims, nor does the evidence suggest, that any warrants or documents from the police have been delivered to the applicant’s home in Tamil Nadu since these encounters. The Tribunal also notes that the applicant has had no difficulty in leaving India on two occasions and returning on occasion since these alleged encounters.
The Tribunal is satisfied that the applicant is not of adverse interest to the Indian authorities, Federally or within his home state.
The Tribunal notes that at the hearing the applicant changed his previous testimony at several critical points. He claimed to have had a longer involvement in the political party NTK, saying he had been active previously before getting his membership card on or about 11 December 2016. The Tribunal rejects this (see paragraph 37 above). He also claimed to have been in hiding from the time he went to Kerala on 27 March until his departure [in] May 2017. His original testimony was that he returned home after being in Kerala and talked to his wife and father who advised him to go abroad. He then went to Chennai to talk to the party leader who arranged a travel agent for him and obtained the requisite departure documents, including for his wife who accompanied him to Australia. At hearing, he said that he hid in small villages throughout April 2017, leaving from Trichy Airport [in] May with only the bag he had originally taken to Kerala. To account for getting his visa etc., he said that he had already determined to leave India before going to Kerala and that arrangements were under way to get his documents. This is implausible as his claim has been that he feared harm and left his home for Kerala only after being pointed out by a group of men on 27 March: there is no mention at an earlier date of a particular event which prompted him to think of going overseas. The plan of going overseas was originally presented as the result of advice from his wife, father and party leader who got arrangements under way. These arrangements included the departure of the applicant’s wife with him to Australia: there was no mention of his wife in the later reformulation. The scenario the applicant presented at hearing is implausible and the Tribunal is satisfied it was made up only to reinforce his claim that he was in danger in India.
The Tribunal finds that these changes in testimony reflect poorly on the applicant’s credibility. It also notes the unsupported assertions and broad, vague statements. It is not satisfied that he is a credible witness.
The Tribunal has also considered the fact that circumstances have changed in Tamil Nadu, the applicant’s home state, since he left in May 2017. The AIADMK government that he claimed to have opposed and antagonised was defeated in the state elections of 2021 and the applicant’s own party, the NTK, although still small, increased its vote. The Tribunal put this to the applicant at the hearing and the applicant replied that AIADMK supporters in his local village would still pose a threat to him. (See paragraphs 30 and 31 above). The Tribunal finds this implausible given that over eight years has elapsed; and also that no serious harm has befallen the applicant’s father who was known to have expressed the same views as the applicant and who has remained living among the AIADMK supporters in the village.
Finally, the Tribunal considers the fact that the applicant, despite his claimed fear of persecution in India, has returned there of his own volition on two occasions, in December 2018 and January 2025, and stayed for a month on each occasion. He claims that he was in hiding on each occasion but he was, on his own admission, staying in a lodge near the medical facility in which his father was being treated. He said he spent all day in hospital with his father. His wife and child travelled regularly from their home to the hospital. The Tribunal does not regard this as being effectively ‘in hiding’. There are no claims, nor does the evidence suggest, that there was any sign of trouble for the applicant on either of the two visits to India.
On all the information before it, the Tribunal is not satisfied that the applicant has a political profile which would attract any serious harm. It does not find the applicant to be a credible witness and does not place weight on his assertions that he has been harmed in the past. He has provided no evidence to support this contention despite saying that he would do so. There are no claims, nor does the evidence suggest, that the applicant fears harm for any reason other than for his political opinion.
The Tribunal finds that there is no real chance that serious harm will befall the applicant in the reasonably foreseeable future for reason of his political opinion, or for any other reason. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons set out in s 5J(1)(a) of the Act. He does not fulfill the definition of refugee at s 5H(1) of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Complementary protection
The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion.[1] The Tribunal must be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that they will suffer significant harm.
[1] MIAC v SZQRB [2013] FCAFC 33.
The Tribunal has set out its reasons above as to why it is not satisfied that there is a real chance of serious harm befalling the applicant for reason of his political opinion. The same arguments follow with regard to the real risk of significant harm because of his political opinion if he were to return to his home area or anywhere else. The Tribunal finds that there is no real risk of the applicant suffering significant harm in the reasonably foreseeable future if he were returned to India for reason of his real or imputed political opinion, or for any other reason.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).]
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hearing:   24 February 2025
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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